Opinion
CRIMINAL ACTION 24-cr-00058-SKC
10-03-2024
UNITED STATES OF AMERICA, Plaintiff, v. DAVID WAYNE WATKINS, Defendant.
ORDER DENYING MOTION TO DISMISS COUNT TWO (DKT. 23)
S. Kato Crews United States District Judge
The above-referenced Motion is now before the Court. Mr. Watkins is charged in a four count indictment alleging violations of (1) 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vi) (Count 1, possession with intent to distribute fentanyl); (2) 18 U.S.C. 922(g)(1) (Count 2, possession of a weapon by a prohibited person); (3) 18 U.S.C. 924(c)(1)(A)(i) (Count 3, possession of a firearm in furtherance of a drug trafficking crime); and (4) 26 U.S.C. § 5861(d) (Count 4, unlawful possession of an unregistered firearm). His motion seeks dismissal of the § 922(g)(1) charge at Count 2.
Mr. Watkins has prior felony convictions that include three separate convictions for manufacture and delivery of a controlled substance, and two separate convictions each for felony assault of a family or household member. Dkt. 16.
Mr. Watkins argues § 922(g)(1) is unconstitutional under the Supreme Court's decisions in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022) and United States v. Rahimi, 144 S.Ct. 1889 (2024), both facially and as applied to him. The government opposes the Motion. The Court has reviewed the parties' filings, the docket in this matter, and applicable legal authority. No hearing is necessary nor have the parties requested one.
In considering the Motion, this Court is bound by Tenth Circuit precedent. United States v. Spedalieri, 910 F.2d 707, 709 n.2 (10th Cir. 1990). Because neither Bruen nor Rahimi have expressly abrogated controlling Tenth Circuit precedent on the issue, the Motion is DENIED.
ANALYSIS
The Tenth Circuit first upheld the constitutionality of § 922(g)(1) in United States v. McCane, 573 F.3d 1037 (10th Cir. 2009). The plaintiff in McCane argued the Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570 (2008)- where the Court held the Second Amendment provides an individual right to possess and use a handgun for lawful purposes within the home-meant that § 922(g)(1) was unconstitutional. McCane, 573 F.3d at 1047. But because the Supreme Court “explicitly stated in Heller that ‘nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons[,]'” the Tenth Circuit rejected McCane's argument and upheld the constitutionality of § 922(g)(1). Id.; see also Humphrey's Executor v. United States, 295 U.S. 602 (1935) (dicta “may be followed if sufficiently persuasive” but are not binding).
The Supreme Court's decision in Bruen, supra-which set out the Court's “history and traditions” test for evaluating the constitutionality of gun restrictions- followed Heller. Post-Bruen, the Tenth Circuit was again presented with the issue of the constitutionality of § 922(g)(1) this time in Vincent v. Garland, 80 F.4th 1197 (10th Cir. 2023), cert. granted, judgment vacated, 144 S.Ct. 2708 (2024). Noting that while Bruen “created a new test for determining the scope of the Second Amendment,” the Tenth Circuit observed the Supreme Court “didn't appear to question the constitutionality of longstanding prohibitions on possession of firearms by convicted felons[, and] [i]f anything, Bruen contains two potential signs of support for these prohibitions.” Vincent, 80 F.4th at 1201. “Given the six Justices' reaffirmation of the Heller language and the Court's apparent approval of ‘shall-issue' regimes and related background checks,” the Tenth Circuit determined that Bruen “did not indisputably and pellucidly abrogate our precedential opinion in McCane.” Id. at 1202. As a result, it followed McCane and again upheld the constitutionality of § 922(g)(1). Id.
But wait. The Supreme Court subsequently granted a cert petition in Vincent, vacated the judgment, and remanded the matter to the Tenth Circuit “for further consideration in light of United States v. Rahimi, 602 U.S. __, 144 S.Ct. 1889, __ L.Ed.2d __ (2024).” Vincent v. Garland, 144 S.Ct. 2708 (2024). As one district court in the Tenth Circuit observed, “[a]lthough the Supreme Court vacated the judgment in Vincent and remanded the case in light of Rahimi, it did not question the merits of McCane or express any doubt about the Tenth Circuit's reasoning in Vincent when doing so.” United States v. Sutton, No. 24-CR-00168-SEH, 2024 WL 3932841, at *4 (N.D. Okla. Aug. 23, 2024). And the Court finds persuasive the Tenth Circuit's unpublished decision in United States v. Curry, No. 23-1047, 2024 WL 3219693, *4 n.7 (10th Cir. June 28, 2024), where it observed that Bruen didn't expressly overrule or clearly abrogate McCane, nor did Rahimi “indisputably and pellucidly abrogate” McCane.
Rahimi involved a defendant who pleaded guilty to possessing a firearm while subject to a domestic violence restraining order that included a finding that the defendant represented a credible threat to the physical safety of an intimate partner or their child. Rahimi, 144 S.Ct. at 1894. The Supreme Court used Rahimi to expound on proper application of the Bruen “history and traditions” test by explaining that a “court must ascertain whether the new law is ‘relevantly similar' to laws that our tradition is understood to permit[.]” Id. at 1898. This requires consideration of “why and how” a law burdens the right; “when a challenged regulation does not precisely match its historical precursors, ‘it still may be analogous enough to pass constitutional muster.' . . . The law must comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer' or a ‘historical twin.'” Id. (citations omitted). All of this in mind, the Supreme Court went on to find § 922(g)(8) constitutional.
Thus, where the dust has currently settled, and regardless of the seemingly amorphous utility of Vincent, it is clear that McCane remains binding circuit precedent. See, e.g., Sutton, 2024 WL 3932841, at *4 (“Because neither Bruen nor Rahimi indisputably and pellucidly abrogated McCane, McCane remains binding authority upon this Court. Accordingly, Sutton's facial and as-applied challenges to § 922(g)(1) are denied.”); see also Vincent, 80 F.4th at 1201 n.4 (“[W]e're bound by McCane regardless of whether Heller's language constituted dicta or part of the holding.”).
* * *
For the reasons shared above, McCane precludes Mr. Watkins' constitutional challenge to § 922(g)(1) facially and as applied. The Motion is DENIED. It is further ORDERED that the government's unopposed Motion to Exceed Page Limitation (Dkt. 27) is GRANTED.
The Court agrees with the government that Mr. Watkins' “as applied” argument is woefully underdeveloped. He vaguely argues the government “will not be able to demonstrate a relevantly similar historical tradition with respect to persons in Mr. Watkins' situation,” but without explaining what this means. Dkt. 23, p.13 (emphasis added). He similarly argues “the government will not be able to demonstrate a relevantly similar historical tradition of firearm dispossession with respect to the circumstances of Mr. Watkins' case[,]” again without explaining what this means. Id. (emphasis added).