Opinion
CRIMINAL 23-6-DLB-CJS-1
10-20-2023
UNITED STATES OF AMERICA PLAINTIFF v. DEMARCO STURGEON DEFENDANT
MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, UNITED STATES DISTRICT JUDGE
This matter is before the Court upon Defendant Demarco Sturgeon's Motion to Dismiss. (Doc. # 59). The United States has filed a Response in Opposition. (Doc. # 61). Sturgeon did not file a reply, and the time period for doing so has expired. See LCrR 47.1(d). For the reasons set forth herein, the Motion to Dismiss (Doc. # 59) will be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 16, 2023, Defendant Sturgeon was indicted on one count of purchasing firearms for another person with knowledge that the others intended to possess the firearms in furtherance of a felony or drug trafficking crime in violation of 18 U.S.C. § 932(b), one count of conspiracy to transfer firearms to others with knowledge that the possession of the firearms by others would be a felony in violation of 18 U.S.C. § 933(a)(3), one count of possession and transfer of a machinegun in violation of 18 U.S.C. § 922(o), and one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Doc. # 14).
On August 11, 2023, Sturgeon moved to dismiss each charge in the Indictment, arguing in a one-page memorandum that the charges are unconstitutional in light of the Supreme Court decision in New York Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S.Ct. 2111 (2022), and that the United States must meet the requirements imposed by Bruen to proceed with his prosecution. (Doc. # 59 at 3). The United States filed a Response, arguing that Bruen did not disturb the constitutionality of these firearms statutes and that even under the new Bruen test, the statutes are consistent with the Nation's historical tradition of firearm regulation. (Doc. # 61). Sturgeon did not file a reply. The Court will consider the arguments herein.
Sturgeon is a co-defendant in another case in this district, United States v. Smith, et al., 2:23-cr-28-DLB-CJS (E.D. Ky. 2023). He has filed a similar motion in that case. See id., ECF No. 40.
II. ANALYSIS
The Second Amendment provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. The Supreme Court held in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010) that the Second Amendment guarantees “the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.” Bruen, 142 S.Ct. at 2122. In June 2022, the Supreme Court decided Bruen and determined that the Second Amendment also protects “an individual's right to carry a handgun for self-defense outside the home.” Id. The Supreme Court established a new, two-step approach to assess the constitutionality of a law that restricts the right to bear arms. Id. at 2129-30. First, “[w]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct.” Id. Second, when a regulation burdens such conduct, “[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.” Id. at 2130.
Although the issue in Bruen was whether a New York licensing regime requiring a showing of “proper cause” for handgun carrying permits was constitutional, criminal defendants across the country have flooded the lower courts with motions to dismiss, arguing that Bruen has called into question various criminal statutes related to the possession of firearms. However, Bruen repeatedly described the Second Amendment's application to “law-abiding” citizens. See id. at 2122, 2131, 2133-34, 2138, 2150, 2156. Bruen also affirmed Heller and McDonald, noting that these cases “recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense . . . consistent with Heller and McDonald.” Id. at 2122 (emphasis added). Thus, by explicitly affirming the holdings in Heller and McDonald, Bruen did not invalidate the firearms statutes that Sturgeon has been charged with violating. See Bruen, 142 S.Ct. at 2122; id. at 2157 (Alito, J., concurring) (“Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun . . . Nor have we disturbed anything that we said in Heller or McDonald . . . about restrictions that may be imposed on the possession or carrying of guns.”); id. at 2162 (Kavanaugh, J., joined by Roberts, C.J., concurring) (“as Heller and McDonald established and the Court today again explains . . . Properly interpreted, the Second Amendment allows a ‘variety' of gun regulations.”) (quoting Heller, 554 U.S. at 636).
Sturgeon generally challenges his charges under §§ 932(b), 933(a), 922(o), and 924(c)(1)(A)(i), arguing in a one-page memorandum that the charges infringe on his Second Amendment right to bear arms, and that the United States must meet its burden to demonstrate that the offenses are consistent with the Nation's historical tradition of firearms regulation. (Doc. # 59 at 3). Evaluating each charge separately, Sturgeon's Motion fails at the first step of the Bruen analysis-the firearms statutes that he is charged with regulate conduct outside of the plain text of the Second Amendment. See Bruen, 142 S.Ct. at 2129-30.
1. Count 1 and 2 - 18 U.S.C. §§ 932(b) and 933(a)
Sturgeon is charged with two “straw purchasing” statutes: purchasing firearms for another person with knowledge that the others intended to possess the firearms in furtherance of a felony or drug trafficking crime in violation of § 932(b), and conspiracy to transfer firearms to others with knowledge that the possession of the firearms by others would be a felony, in violation of § 933(a). (Doc. # 14). The United States notes that because these statutes are relatively new, little case law exists addressing their constitutionality. (Doc. # 61 at 13). The United States analogizes these statutes to existing statutes related to the unlicensed trafficking of firearms, making false statements in connection with a firearms transaction, transfer to a disqualified person, and unlicensed dealing in firearms. (Id.) (quoting 18 U.S.C. § 922(a)(1)(A), (a)(6), (d)(1) and 18 U.S.C. § 923(a)). The United States notes that the Supreme Court rejected a challenge to a statute barring the straw purchasing of firearms in Abramski v. United States, and it argues that Bruen did not disturb that holding. (Id. at 16) (quoting Abramski v. United States, 573 U.S. 169, 172 (2014)). The United States also points to United States v. Bacon, where the Sixth Circuit held there was no “historical indication that the Second Amendment encompasses such sales and that all relevant cases support the opposite conclusion.” (Id. at 15) (quoting United States v. Bacon, 884 F.3d 605, 611 (6th Cir. 2018)).
The Court agrees with the United States that the Second Amendment does not protect a right to purchase or transfer firearms for another person. Bruen repeatedly stated that the Second Amendment protects a “right to possession of a handgun for selfdefense . . . consistent with Heller and McDonald.” Bruen, 142 S.Ct. at 2122. Though the Sixth Circuit has not had an opportunity to rule on the constitutionality of §§ 932(b) and 933(a), the Court finds it persuasive that the Sixth Circuit has previously held that the straw purchase of firearms is outside of the conduct protected by the Second Amendment. See Bacon, 884 F.3d at 611 (quoting Heller, 554 U.S. at 626-27) (“[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . . or laws imposing conditions and qualifications on the commercial sale of arms.”).
Additionally, courts outside of the Sixth Circuit have held that Bruen does not affect statutes prohibiting the straw purchasing of firearms. In United States v. Valentine, the Northern District of Indiana held that “[n]othing about serving as a straw purchaser implicates the purchaser's Second Amendment rights as they are not the ultimate possessor of the firearm.” No. 2:20-CR-117 JD, 2023 WL 2571720, at *8 (N.D. Ind. Mar. 20, 2023). The court reasoned that “[t]o the extent a straw buyer possesses a firearm, he does not possess it for the purposes of self-defense as protected by the Second Amendment, he possesses it for the purpose of transfer to another.” Id.
Like the defendant in Valentine, Sturgeon is charged with the straw purchase of firearms for persons that he knew were going to use the firearms to commit a felony or drug trafficking crime, or that the possession of those firearms would be a felony. (Doc. #14). Nowhere in his motion does Sturgeon assert that these weapons were intended for self-defense. Instead, he simply argues that Bruen requires the United States to show that the statutes are consistent with the Nation's historical tradition of firearms regulation. (Doc. # 59 at 3). As noted above, the United States does not need to make this showing with respect to Counts 1 and 2 because the straw purchase of firearms is conduct outside of the scope of the Second Amendment, meaning the Bruen analysis ends at the first step. See Bruen, 142 S.Ct. at 2129-30. For these reasons, Sturgeon's Motion to Dismiss his charges under § 932(b) and § 933(a) will be denied.
2. Count 3 - 18 U.S.C. § 922(o)
The possession and transfer of a machine gun is not an “ordinary self-defense need,” as noted by the Supreme Court in Heller. 554 U.S. at 625 (“The Second Amendment does not protect those weapons not typically used by law-abiding citizens for lawful purposes ....”) (referencing Miller, 307 U.S. at 174). Following Heller, the Sixth Circuit explicitly stated that the Second Amendment does not authorize the unlicensed possession of an unregistered machine gun for personal use. See Hamblen v. United States, 591 F.3d 471, 474 (6th Cir. 2009). Nothing in Bruen can be reasonably read to call this holding into question. Additionally, while no district court in the Sixth Circuit has had an opportunity to opine on the constitutionality of § 922(o), no other district courts have accepted a post-Bruen challenge to § 922(o). See United States v. Lane, No. 3:23cr62 (RCY), 2023 WL 5663084 (E.D. Va. Aug. 31, 2023) (collecting cases). Because this statute regulates conduct outside of the scope of the Second Amendment, it is not necessary for the Court to engage in an analysis of whether the statutes are consistent with the Nation's historical tradition of firearms regulation. See Bruen, 142 S.Ct. at 212930. The Bruen analysis ends at the first step and Sturgeon's Motion to Dismiss the charge under § 922(o) will be denied.
3. Count 5 - 18 U.S.C. § 924(c)(1)(A)(i)
Finally, Sturgeon challenges his charge under § 924(c). (Doc. # 59). The Second Amendment does not protect a right to possess a firearm in furtherance of drug trafficking. See United States v. Burgess, No. 22-1110, 2023 WL 179886, at *5 (6th Cir. Jan. 13, 2023). Following Bruen, the Sixth Circuit explicitly held that Bruen did not affect a conviction under § 924(c) in United States v. Burgess. 2023 WL 179886, at *5. Therein, one of the defendants was convicted under § 924(c) and claimed that post-Bruen, his conviction violated the Second Amendment. Id. at *1, 4. In rejecting his challenge, the Court relied on United States v. Greeno, a Sixth Circuit case from 2012. Id. (quoting 679 F.3d 510 (6th Cir. 2012)). The Circuit reasoned that though Bruen invalidated the meansend scrutiny portion of Greeno's analysis, Bruen left in place the first portion: whether “the government can prove that the regulated conduct falls beyond the Amendment's original scope.” Burgess, 2023 WL 179886, at *5 (quoting Bruen, 142 S.Ct. at 2126). The Circuit concluded that Bruen would not affect the defendant's conviction under § 924(c) because the defendant had admitted to possession of firearms in furtherance of drug trafficking, which is conduct outside of the scope of the Second Amendment. Burgess, 2023 WL 179886, at *5 (citing Greeno, 679 F.3d at 520) (holding the Second Amendment “did not extend to possession of weapons for unlawful purposes.”)).
The same is true here. Sturgeon was indicted for possession of a firearm in furtherance of a drug trafficking crime in violation of § 924(c)(1)(A)(i). (Doc. # 14). As noted in Bruen, the Second Amendment does not protect “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purposes.” Bruen, 142 S.Ct. 2128 (quoting Heller, 554 U.S. at 626). The Sixth Circuit has specifically held that despite the new test in Bruen, convictions under § 924(c) are valid because possession of a firearm in furtherance of drug trafficking crimes is not conduct covered by the Second Amendment. See Burgess, 2023 WL 179886, at *5. Sturgeon provides no authority asserting otherwise. Thus, Sturgeon's Motion to Dismiss his charge under § 924(c) is denied.
III. CONCLUSION
Accordingly, IT IS ORDERED that:
(1) Sturgeon's Motion to Dismiss (Docs. # 59) is DENIED; and
(2) This matter is set for a Scheduling Conference on Monday, November 6, 2023 at 8:00 a.m. in Covington, Kentucky, to discuss rescheduling the trial date in this matter.