Opinion
No. 1:21-cr-1422-WJ-1
04-26-2023
UNITED STATES of America, Plaintiff, v. Johnny C. TRUJILLO, Defendant.
Nicholas Scott Mote, Presiliano Torrez, United States Attorneys Office, Albuquerque, NM, for Plaintiff.
Nicholas Scott Mote, Presiliano Torrez, United States Attorneys Office, Albuquerque, NM, for Plaintiff. ORDER DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA WILLIAM P. JOHNSON, CHIEF UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on Defendant Johnny C. Trujillo's Opposed Motion to Withdraw his Guilty Plea (Doc. 71), filed October 20, 2022. Defendant contends that he is entitled to withdraw his guilty plea to one count of possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k), on grounds that he is legally innocent because § 922(k) is an unconstitutional infringement on his Second Amendment right to possess a firearm. Upon review of the parties' written submissions and after hearing oral arguments of counsel, the Court concludes Defendant has not met his burden to demonstrate a fair and just reason for withdrawal of his plea agreement. Accordingly, Defendant's Motion is DENIED.
BACKGROUND
On February 18, 2021, Rio Arriba police were dispatched to a residence to respond to "a male subject waiving a gun in the area." Doc. 69 ("PSR") at 5. Officers arrived to discover Defendant sitting in the doorway of a trailer. Officers conducted a pat-down and located one Smith & Wesson 45 M&P .45 caliber pistol containing 10 rounds of ammunition, concealed in a holster on Defendant's person. The pistol's serial numbers had been removed or tampered with. Id. at 5. Defendant admitted "he was aware the serial number had been tampered with but continued to carry it." Id. He was placed under arrest. During a search incident to arrest, police discovered in Defendant's front pocket a small tube containing 2.09 grams of a substance that field tested positive for heroin. Defendant was then transported to Espanola Detention Center. Officers performed another search of Defendant's person and located a baggie containing .14 grams of a substance that field tested positive for methamphetamine. Id.
Defendant was indicted by a grand jury in September 2021, with one count of Possessing or Receiving a Firearm with an Obliterated Serial Number in violation of 18 U.S.C. §§ 922(k)(1) and 924. Doc. 69 at 4. In June 2022, the United States Supreme Court ("Supreme Court") issued a decision in New York State Rifle & Pistol Association, Inc. v. Bruen, which set forth a new framework for lower courts to apply when examining whether a regulation of firearms offends the Second Amendment. 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022). One month later, on July 28, 2022, Defendant entered into a plea agreement and pleaded guilty to one count of violating § 922(k). Docs. 62 and 63. Three months after Defendant pleaded guilty, United States District Judge Joseph R. Goodwin of the Southern District of West Virginia issued a decision in United States v. Price, No. 22-cr-97, 635 F.Supp.3d 455, 463-64 (S.D.W. Va. Oct. 12, 2022), finding that 18 U.S.C. § 922(k) is an unconstitutional regulation of firearms under Bruen. Defense counsel became aware of the Price decision five days later and promptly filed the instant Motion to withdraw Defendant's guilty plea. Doc. 71 at 2.
The Price Court granted the defendant's motion to dismiss his indictment under § 922(k) based on the statute's purported unconstitutionality. The United States filed an interlocutory appeal, and the issue is currently before the United States Court of Appeals for the Fourth Circuit, Case No. 22-4609. Additionally, the Court notes that another judge in the United States District Court for the Southern District of West Virginia declined to follow Price. See United States v. Bradley, No. 2:22-cr-98, 2023 WL 2621352 (S.D.W. Va. March 23, 2023).
DISCUSSION
Prior to sentencing, a defendant may withdraw a guilty plea if he shows "a fair and just reason for requesting the withdrawal." Fed R. Crim. P. 11(d)(2)(B). The Tenth Circuit adopted seven factors "courts should consider" in analyzing such a motion:
(1) whether the defendant has asserted his innocence; (2) whether the government will be prejudiced if the motion is granted; (3) whether the defendant has delayed in filing the motion; (4) the inconvenience to the court if the motion is granted; (5) the quality of the defendant's assistance of counsel; (6) whether the plea was knowing and voluntary; (7) whether the granting of the motion
would cause a waste of judicial resources.United States v. Black, 201 F.3d 1296, 1299-1300 (10th Cir. 2000). As a threshold matter, the Court considers Black factors 1, 5, and 6 to determine whether there is a "fair and just reason" for withdrawal. United States v. Hamilton, 510 F.3d 1209, 1217 (10th Cir. 2007). The Court concludes that Defendant has failed to present a fair and just reason for withdrawal; thus, the Court need not address Black factors 2, 3, 4, and 7.
I. Defendant failed to assert a claim of legal innocence.
Turning to the first factor, "a defendant may satisfy the assertion-of-innocence factor by asserting legal innocence." Id. at 1214 (emphasis added). However, it must be a "credible claim of legal innocence." Id. (emphasis in original). A defendant convicted under an unconstitutional statute is legally innocent. See Norton v. Shelby County, 118 U.S. 425, 442, 6 S.Ct. 1121, 30 L.Ed. 178 (1886) ("An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed."). Defendant's claim of legal innocence is premised on the Court adopting the reasoning in Price, a non-binding district court decision from another circuit, and finding that 18 U.S.C. § 922(k) is unconstitutional in light of the Supreme Court's ruling in Bruen.
In Bruen, the Supreme Court struck down a New York state law requiring an individual to demonstrate "proper cause," or a "special need for self-protection distinguishable from that of the general community," to obtain a license to carry a handgun outside his home. 142 S. Ct. at 2123. Petitioners challenged the law after New York state denied their applications for unrestricted licenses on the basis that their request to carry a handgun for general self-defense did not constitute "proper cause." Id. at 2125. In the process of holding New York State's proper-cause requirement unconstitutional, the Supreme Court clarified the framework for analyzing Second Amendment challenges. First, the Supreme Court held that "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." Id. at 2126. Second, to justify regulation of protected conduct, "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." Id. To do so, the United States must "identify a well-established and representative" analogous historical regulation of firearms, but it need not rise to the level of "a historical twin." Id. at 2133 (citation omitted) (emphasis in original). "[W]hether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are central considerations when engaging in an analogical inquiry." Id. (internal quotation omitted).
In Price, a district court judge in the Southern District of West Virginia considered a Second Amendment challenge to 18 U.S.C. § 922(k) and held the statute is unconstitutional under the Bruen framework. 635 F.Supp.3d at 463-64. As a threshold matter, the Price court concluded § 922(k) "prohibits conduct that is protected by the plain text of the Second Amendment" because it "criminalizes the mere possession of a firearm after the serial number is removed, obliterated, or altered in any way, whether or not the firearm is then placed into commerce." Id. at 460 (emphasis in original). The court cited a hypothetical scenario where a father lawfully purchased a firearm, removed the serial number, then conveyed the gun to his daughter as part of his estate. The court reasoned that § 922(k) "makes her possession of the firearm illegal, despite the fact that it was legally purchased by her father and despite that fact that she was not the person who removed the serial number." Id. After finding § 922(k) covers protected conduct, the court concluded the United States failed to meet its burden to identify an analogous historical regulation of firearms, and struck down § 922(k) as unconstitutional.
Defendant asks this Court to follow Price and hold that § 922(k) is unconstitutional and therefore that Defendant is "legally innocent of his offense." Doc. 71 at 3. The United States argues that Price is not binding, was incorrectly decided, and urges the Court to align with six other district courts that have rejected Second Amendment challenges to § 922(k). See United States v. Holton, No. 3:21-cr-482-B, 639 F.Supp.3d 704 (N.D. Tex. Nov. 3, 2022); United States v. Reyna, No. 3:21-cr-41, 2022 WL 17714376 (N.D. Ind. Dec. 15, 2022); United States v. Tita, No. RDB-21-334, 2022 WL 17850250 (D. Md. Dec. 22, 2022); United States v. Serrano, No. 21-cr-1590, 651 F.Supp.3d 1192 (S.D. Cal. Jan. 17, 2023); United States v. Lovo-Serrano, No. 5:21-cr-398-FL-1, 2023 WL 1863164 (E.D.N.C. Feb. 9, 2023); and United States v. Bradley, No. 2:22-cr-98, 2023 WL 2621352 (S.D.W. Va. March 23, 2023). Upon review of the law including the above-cited precedent, the Court is not persuaded by the analysis and holding in Price. Accordingly, the Court concludes that § 922(k) is constitutional and, thus, Defendant's claim of legal innocence is without merit.
The Court notes that Reyna is factually and procedurally similar to the instant case. Each Defendant admitted he knew he was carrying a handgun with an obliterated serial number, entered a guilty plea for violating § 922(k), and moved to withdraw his guilty plea in light of Bruen and Price. 2022 WL 17714376 at *1-3. The Reyna court denied the defendants' motion and upheld § 922(k) on grounds that the Second Amendment "doesn't extend to arms that aren't typically possessed by law-abiding citizens for lawful purposes." Id. at *5.
In Bradley, Judge Irene C. Berger, also of the United States District Court for the Southern District of West Virginia, declined to follow Judge Goodwin's decision in Price. Judge Berger held (1) § 922(k) does not regulate protected conduct; and (2) "relevant historical analogues [ ] offer comparable burdens on the right to bear arms." 2023 WL 2621352 at *3-4.
A. 18 U.S.C. § 922(k) does not prohibit conduct protected by the text of the Second Amendment.
The Second Amendment provides: "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 has interpreted "right of the people" to refer to "all members of the political community." District of Columbia v. Heller, 554 U.S. 570, 580, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). "Arms" means "weapons that were not specifically designed for military use and were not employed in a military capacity," including "those that were not in existence at the time of the founding." Id. at 581-82, 128 S.Ct. 2783. To "bear arms" means to carry a weapon for "the purpose of offensive or defensive action," but is not limited to service in an organized militia. Id. at 584-85, 128 S.Ct. 2783. In totality, the text of the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation." Id. at 592, 128 S.Ct. 2783. However, "the right secured by the Second Amendment is not unlimited," and the sorts of weapons protected are those that were "in common use at the time." Id. at 627, 128 S.Ct. 2783 (citation omitted). This limitation on the Second Amendment's protection "is fairly supported by the historical tradition of prohibiting 'dangerous and unusual weapons.' " Id. (citation omitted).
Defendant asks the Court to follow Price and hold that § 922(k) prohibits conduct protected by the Second Amendment's text. Section 922(k) states:
It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.18 U.S.C. § 922(k). The Price court found that § 922(k) is a "blatant prohibition on possession" because it hypothetically has the potential to criminalize an individual's possession of a lawfully acquired firearm. 635 F.Supp.3d at 459-60. Defendant argues, "The Court's reasoning is unassailable and equally applicable to Mr. Trujillo." Doc. 71 at 3. The United States argues § 922(k) does not prohibit an individual's right to bear arms; rather, it "merely restricts the type of weapon" that one may possess for the purposes of self-defense. Doc. 77 at 8.
The Court holds that the conduct proscribed by § 922(k) is not protected by the text of the Second Amendment because the type of firearms prohibited by § 922(k) are not those typically possessed by law-abiding citizens for lawful purposes. The Supreme Court has thus far identified two firearms regulations that offend the Second Amendment: the District of Columbia's ban on handgun possession inside the home in Heller, and New York's law requiring proper cause to carry any handgun in public in Bruen. In each case, the Supreme Court struck down broad restrictions on carrying handguns—"the most popular weapon chosen by Americans for self-defense"—either inside the home or in public for the purpose of self-defense. Heller, 554 U.S. at 629, 128 S.Ct. 2783. By contrast, in Heller, the Supreme Court held Second Amendment protection does not extend to weapons that are "not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Id. at 625, 128 S.Ct. 2783 (citing United States v. Miller, 307 U.S. 174, 179, 59 S.Ct. 816, 83 L.Ed. 1206 (1939)). This Court agrees with the Third Circuit that an unmarked firearm is functionally identical to a firearm with a serial number; thus, "there would appear to be no compelling reason why a law-abiding citizen would prefer an unmarked firearm" to defend himself. United States v. Marzzarella, 614 F.3d 85, 95 (3d. Cir. 2010). Moreover, firearms with removed or obliterated serial numbers are more difficult for law enforcement to trace and thus "have value primarily for persons seeking to use them for illicit purposes." Id. (citing United States v. Carter, 421 F.3d 909, 910 (9th Cir. 2005)). Defendant has failed to identify any potential lawful purpose served by removing a firearm's serial number, and the Court cannot conceive of one. As such, the Court concludes that firearms with removed, obliterated, or altered serial numbers are "weapons not typically possessed by law-abiding citizens for lawful purposes," and therefore § 922(k) does not burden conduct protected by the Second Amendment's text. Heller, 554 U.S. at 625, 128 S.Ct. 2783.
B. The United States has identified historical regulations of firearms sufficiently analogous to § 922(k).
Even if § 922(k) did proscribe protected conduct, the United States has identified numerous historical analogues that demonstrate § 922(k) is "consistent with this Nation's historical tradition of firearm regulation." Bruen, 142 S. Ct. at 2126. Although modern serial numbers did not exist at the time the Second Amendment was ratified in 1791 as part of the Bill of Rights to the Constitution, "the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated." Id. at 2132. The Court finds that the United States has met its burden by identifying historical regulations, like § 922(k), that served to control and trace the sale of firearms and "impose[d] a comparable burden on the right of armed self-defense." Id. at 2133.
The purpose of the Gun Control Act of 1968, which enacted § 922(k), "is to provide support to Federal, State, and local law enforcement officials in their fight against crime and violence." Bradley, 2023 WL 2621352 at *4 (quoting Pub. L. No. 90-618, § 101). Section 922(k) furthers the Act's purpose by "aim[ing] to punish one who possesses a firearm whose principal means of tracing origin and transfers in ownership—its serial number—has been deleted or made appreciably more difficult to make out." United States v. Adams, 305 F.3d 30, 33 (5th Cir. 2002). Section 922(k) "assist[s] law enforcement by making it possible to use the serial number of a firearm recovered in a crime to trace and identify its owner and source." Marzzarella, 614 F.3d at 98.
The United States points to a variety of firearms regulations enacted during the colonial period before and after the Revolutionary War that similarly regulated the sale, transfer, and manufacturing of firearms and facilitated firearms tracing. "[C]olonial governments substantially controlled the firearms trade. The government provided and stored guns, controlled the conditions of trade, and financially supported private firearms manufacturers." Teixeira v. Cnty. of Alameda, 873 F.3d 670, 685 (9th Cir. 2017) (citation omitted). Relevant regulations that facilitated firearm tracing include: "A 1631 Virginia law required the recording not only of all new arrivals to the colony, but also 'of arms and munitions." Robert Spitzer, Gun Law History in the United States and the Second Amendment, 80 Law & Contemp. Probs. 55, 76 (2017). Also relevant are early colonial firearm registration and muster requirements. See Meg Penrose, A Return to the States' Rights Model: Amending the Constitution's Most Controversial and Misunderstood Provision, 46 Conn. L. Rev. 1463, 1483 (2014) ("[T]he founding generation endured mandatory gun registration as a basis for ensuring a functional militia, and routinely disarmed those considered threatening to the established social order."); see also Minutes from a Convention of the Federalist Society: Civil Rights: The Heller Case, 4 NYU J.L. & Liberty 293, 309 (2009) ("The Founders did have gun control. They had mandatory musters. Everyone with a gun had to show up and register their firearm . . . ."). Moreover, several colonial regulations were adopted to prevent individuals from possessing firearms who, at that time in history, were considered potentially dangerous. See Teixeira, 873 F.3d at 685 ("In response to the threat posed by Indian tribes, the colonies of Massachusetts, Connecticut, Maryland, and Virginia all passed laws in the first half of the seventeenth century making it a crime to sell, give, or otherwise deliver firearms or ammunition to Indians."). Finally, in the 18th and 19th centuries, several states imposed regulations on firearms manufacturing. See Spitzer, supra, at 74 ("In 1814, for example, Massachusetts required that all musket and pistol barrels manufactured in the state be first tested or "proved" to insure that they could withstand the firing process without rupturing . . . . New Hampshire created and appointed state gunpowder inspectors to examine every storage and manufacturing site.").
Following the lead of the Northern District of Texas in Holton, the Court concludes these historical regulations "are sufficiently analogous to § 922(k) to pass 'constitutional muster' under Bruen." 639 F.Supp.3d at 711-12 ("These historical regulations and § 922(k), while effected by different means, address similar goals: (1) controlling and tracing the sale of firearms and (2) ensuring dangerous individuals did not obtain firearms."). The Court also notes the historical regulations outlined above and § 922(k) place comparable burdens on the right to possession of a firearm for self-defense. Serial number and registration requirements do "not impair the use or functioning of a weapon in any way" and thus "impose little to no burden on individual's right to bear arms." Marzzarella, 614 F.3d at 94.
For the foregoing reasons, the Court declines to follow Price and concludes instead that § 922(k) is constitutional under the Bruen framework. As such, Defendant has failed to assert a "credible claim of legal innocence" to support his Motion. Hamilton, 510 F.3d at 1214.
II. Defendant was competently represented by counsel.
The Court next examines Black factor 5, which addresses "the quality of the defendant's assistance of counsel." 201 F.3d at 1299-1300. Defendant had the "benefit of effective assistance of counsel throughout plea bargaining and sentencing." United States v. Elias, 937 F.2d 1514, 1520 (10th Cir. 1991) (affirming district court's denial of defendant's motion to withdraw guilty plea). The plea colloquy before the United States Magistrate Judge who took Defendant's plea demonstrates that Defendant was satisfied with his attorney's performance:
THE COURT: Have you had enough time to discuss your case, your plea agreement, and your decision to plead guilty with your attorney?Doc. 74 at 19-20. Defendant does not allege that his attorney was deficient, much less that he was prejudiced by his attorney's performance. Accordingly, this factor weighs against granting Defendant's Motion.
THE DEFENDANT: Yes, ma'am.
THE COURT: Have you asked him all the questions that you have and received satisfactory answers to all of those questions?
THE DEFENDANT: Yes.
THE COURT: Are you completely satisfied with your attorney's advice and representation?
THE DEFENDANT: Yes.
III. Defendant entered into his plea agreement knowingly and voluntarily.
Finally, turning to Black factor 6, the Magistrate Judge made a finding that Defendant's plea was knowing and voluntary after exhaustive inquiry during his plea colloquy:
THE COURT: Okay. All right, sir, I find that you are competent and capable of entering an informed plea, that you're aware of the nature of the charge against you and the consequences of your plea of guilty to this offense. I find that your plea of guilty and your waiver
of rights are knowing and voluntary and that your plea of guilty is supported by sufficient facts.Doc. 74 at 23. Defendant does not argue to the contrary and so this factor weighs against granting Defendant's Motion.
CONCLUSION
The Court finds that Defendant Johnny C. Trujillo has failed to demonstrate a fair and just reason for withdrawal in accordance with Black factors 1, 5, and 6. With this finding, the Court need not "specifically address the remaining [Black] factors." United States v. Byrum, 567 F.3d 1255 (10th Cir. 2009). Defendant's Motion to Withdraw His Guilty Plea (Doc. 71) is therefore DENIED.
IT IS SO ORDERED.