Opinion
CRIMINAL 22-054
10-24-2023
UNITED STATES OF AMERICA, Plaintiff, v. DARREN YOUNG, Defendant.
MEMORANDUM OPINION DENYING MOTION TO RECONSIDER (DOC. 71) AND SECOND MOTION TO DISMISS THE INDICTMENT (DOC. 72)
ARTHUR J. SCHWAB, UNITED STATES DISTRICT JUDGE
I. Introduction
Currently pending before this Court is Defendant's Motion to Reconsider (doc. 71), on the basis of recent precedent by the Court of Appeals for the Third Circuit in Range v. Attorney Gen. of U.S., 69 F.4th 96 (3d Cir. 2023), and a Second Motion to Dismiss (doc. 72) on the basis that 18 U.S.C. Section 922(g)(1) violates the Commerce Clause.
Defendant's Motion to Reconsider contains a subsumed Motion to Dismiss the Indictment. See Doc. 77 at 15.
Defendant withdrew his claim of unconstitutionality of the statute on its face at Doc. 77, fn 9.
Previously in this case, the Court addressed the question of whether 18 U.S.C. Section 922(g)(1) is constitutional both facially and as-applied to Defendant, in light of the recent landmark Supreme Court precedent in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S.,142 S.Ct. 2111, 213 L.Ed.2d 387, 2022 WL 2251505 (2022). The Court denied Defendant's First Motion to Dismiss the Indictment, finding that Bruen does not undermine or negate the constitutionality of Section 922(g) as established by prior caselaw. Doc. 47.
Defendant's pending Motion to Reconsider and subsumed Motion to Dismiss are grounded primarily on the basis of the Range decision, which, he contends, is intervening controlling precedent that necessitates a revisiting of the Court's prior ruling denying the First Motion to Dismiss, and it compels this Court to dismiss the Indictment in this case.
Unfortunately for Defendant, the procedural posture and factual background of the Range case does not undermine this Court's prior denial of Defendant's First Motion to Dismiss, nor does it support the relief he now requests in his Motion to Reconsider and subsumed Motion to Dismiss. For the following reasons, Defendant's Motion for Reconsideration/to Dismiss will be DENIED. Doc. 71. Likewise, Defendant's Second Motion to Dismiss that Section 922(g) is unconstitutionally violative of the Commerce Clause will also be DENIED. Doc. 72.
II. Background
On March 8, 2022, Defendant was charged in a one-count Indictment, with Possession of Ammunition by a Convicted Felon, in violation of 18 U.S.C. Section 922(g)(1). The Indictment alleges that on November 9, 2021, Defendant possessed eight (8) rounds of Winchester 9mm Luger ammunition despite his status as a convicted felon in the Western District of Pennsylvania. Doc. 3. As further alleged in the Indictment, Defendant has previously been convicted of four (4) felony drug offenses (possession with intent to distribute a controlled substance) in 1997, 2000, and 2010, in the Commonwealth of Pennsylvania, Doc. 3, pursuant to 35 P. S. § 780- 113(a)(30), which are crimes punishable by up to fifteen years of prison. See 18 Pa. C.S. 905; 35 P.S. § 780-113(f)(1) (of which this Court takes judicial notice).
The Indictment alleges that Defendant has previously been convicted of four (4) felony drug offenses in the Commonwealth of Pennsylvania, to wit:
• September 5, 1997, at Docket Number CP-02-CR-0006070-1997, in the Court of Common Pleas, County of Allegheny, of Possession with Intent to Distribute a Controlled Substance;
• October 24, 2000, at Docket Number CP-02-CR-0001694-2000, in the Court of Common Pleas, County of Allegheny, of Possession with Intent to Distribute a Controlled Substance;
• October 24, 2000, at Docket Number CP-02-CR-0008777-2000, in the Court of Common Pleas, County of Allegheny, of Possession with Intent to Distribute a Controlled Substance; and,
• September 22, 2010, at Docket Number CP-02-CR-0015621-2008, in the Court of Common Pleas, County of Allegheny, of Possession with Intent to Distribute a Controlled Substance.Doc. 3.
On March 17, 2022, Defendant was arraigned, entered a plea of not guilty, and was released on $10,000.00 unsecured bond, with conditions of release. Doc. 20, Doc. 21. Upon the filing of two Petitions for Bond Violations, this Court, thereafter, modified the conditions of release, with consent of Defendant, to home detention with electronic monitoring and with a further condition to attend weekly counseling sessions. Doc. 29, Doc. 35.
On August 28, 2023, this Court agreed with the Probation Office recommendation on another violation of pretrial supervision, that no further action was warranted at this time. Doc. 76.
During the pendency of the pretrial proceedings in this case, on June 23, 2022, the Supreme Court of the United States issued its transformative decision in Bruen striking down as unconstitutional a New York City licensing scheme which allowed authorities to deny concealed-carry permits even where an applicant met certain threshold criteria.
On August 20, 2022, Defendant filed his first Motion to Dismiss the Indictment arguing that Bruen must be read as confirmation of his “individual right” to “carry a firearm” and thus, the current Indictment under 18 U.S.C. Section 922(g) is constitutionally invalid (on its face and as-applied) and must be dismissed. Doc. 40 at ¶ 11.
In a lengthy Memorandum Opinion and Order, filed on November 7, 2022, this Court held that Section 922(g)(1) is constitutional both facially and as applied to Defendant under Bruen. This Court found additionally that historical traditions of firearm regulation support Section 922(g)(1), as applied to Defendant. Doc. 47.
On June 6, 2023, the United States Court of Appeals for the Third Circuit issued its opinion in Range v. Attorney General, United States of America, 69 F.4th 96 (3d Cir. 2023) (en banc), which is the primary basis for Defendant's current request for reconsideration.
Following additional status conferences, numerous Orders granting motions for extensions of pretrial motions, and the preparation and filing of a pre-plea presentence investigation report at Defendant's request, on June 29, and June 30, 2023, Defendant filed the currently pending Motion to Reconsider/to Dismiss on the basis of Range, and his related Second Motion to Dismiss, also on the basis of an alleged unconstitutional violation of the Commerce Clause. Doc. 71, Doc. 72. After exhaustive briefing, this matter is now ripe for adjudication.
III. Standards of Review
Defendant seeks reconsideration of the Court's Order denying his First Motion to Dismiss. Reconsideration is an extraordinary remedy that is warranted only when Defendant can demonstrate an intervening change in controlling law, the need to correct a clear error, or to prevent manifest injustice. United States v. Tablack, 2022 WL 37428, *2 (D. N.J. Jan. 4, 2022) (citation to quoted source omitted).
The Government does not expressly quarrel over whether reconsideration is the proper procedural vehicle to address this issue, but instead focuses on the underlying substantive issue and counters that reconsideration is only warranted if the intervening change in the controlling law is applicable to Defendant. Doc. 77 and Doc. 80. Defendant argues that where, as here, the Order is not a final order, but instead is akin to an interlocutory order under Fed.R.Civ.P. 54(b), the Court may revisit or reconsider its prior rulings at any time. Rule 54(b) states that “[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.” Fed.R.Civ.P. 54(b)(emphasis added). According to Defendant, he “stands on the cross-over appeal Rule 54(b) may have to this criminal matter where no judgment has been entered.” The Court agrees with the Government, and will proceed to analyze the substance of the merits, rather than parse it as a threshold reconsideration motion against the procedural backdrop of this case.
Although subject to debate amongst the parties, given the nature of the challenge to the Indictment, in analyzing a Rule 12 Motion to Dismiss, a District Court's review is confined to the facts alleged in the Indictment, see United States v. Bergrin, 650 F.3d 257, 268 (3d Cir. 2011), and the Court “must accept as true the factual allegations set forth [therein].” United States v. Huet, 665 F.3d 588, 595 (3d Cir. 2012) (abrogated on other grounds by Rehaif v. United States, 139 S.Ct. 2191 (2019)).
The scope of review remains the same where Defendant lodges an as-applied challenge to the statute that he is charged with violating. Id. at 601 (in assessing on appeal a defendant's Second Amendment challenge to a charge of aiding and abetting possession of a firearm by a convicted felon, the United States Court of Appeals for Third Circuit emphasized that it was “limited to determining whether, based on the allegations in the Indictment-and only the allegations in the Indictment-[defendant's] Second Amendment rights have been violated”). Against this legal standard, the Court considers Defendant's Motion.
While the Government seeks to address factual issues outside of the Indictment, Defendant counters that it is inappropriate to do so. The decision in Range includes an underlying analysis of the Plaintiff's history, but the nature of the current challenges in this case creates some ambiguity as to whether outside facts may be considered at this juncture. Nonetheless, this Court will decline to consider outside facts at this time, pursuant to Rule 12, and will confine its analysis to the factual allegations contained only within the Indictment.
IV. Discussion
A. Summary
Although Defendant invites this Court to reconsider its prior ruling and to consider his underlying Motion to Dismiss anew, the Court does not agree that reconsideration is warranted because the Range decision is inapposite to the instant case in numerous respects. The Court further finds that several recent cases within this District with similar factual scenarios have been resolved against Defendants who have raised the same arguments regarding the applicability of Range, and in favor of the Government on analogous motions to dismiss.
On the face of the Indictment, Defendant does not argue with the fact that he has four prior convictions for drug trafficking. This Court has considered Defendant's prior history of drug trafficking and whether Section 922(g) is constitutional as-applied to him. Doc 47. The Court determined, employing what the Government has aptly termed as “an alternative analytical framework to Bruen,” that “there are no facts to place [Mr. Young] outside of the scope of offenses that renders felons excluded under Section 922(g)(1).” Doc. 47 at 25.
Nothing in Range alters this Court's conclusions that Section 922(g)(1) is constitutional as-applied to a person in like circumstances, even under the historical analysis set forth in Range. Range considered an as-applied challenge to Section 922(g)(1) by a civil plaintiff who had previously been convicted of the Pennsylvania misdemeanor of making a false statement to obtain food stamps, and who sought an injunction and a declaratory judgment “that § 922(g)(1) violate[d] the Second Amendment as-applied to him.” 69 F.4th at 99. The Court of Appeals for the Third Circuit, sitting en banc, agreed under that unique factual and procedural scenario, that Section 922(g)(1) could not constitutionally be applied to bar firearm possession by that particular plaintiff. Id. at 106.
The Court of Appeals found that Range was one of “the people”, despite a prior conviction for a crime defined as a federal felony, and that “the Government did not carry its burden of showing that our Nation's history and tradition of firearm regulation support disarming [Mr.] Range”. Id.
Nothing in Range or its progeny disturbs the conclusion that Defendant's specified conduct of possessing ammunition as a repeat felon trafficking in controlled substances, places him within the type of proposed conduct that is protected by the Second Amendment, nor is his possession under Section 922(g) inconsistent with the Nation's history and tradition of firearm regulation.
1. Section 922(g)(1) Does Not Violate the Second Amendment, As Applied to Defendant.
The text of the Second Amendment states: “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 parties now agree that Defendant is “one of the people” protected by the Second Amendment despite his multiple prior felony convictions. See Range, 69 F.4th at 101. As held by the United States Court of Appeals for the Third Circuit in Range, supra., “the people” in the Second Amendment's text refers to all Americans, and not only law-abiding persons. Id.
This new finding, based upon Range, and the parties agreement that Defendant is part of the “the people,” is at odds with the Court's prior postBruen Opinion in this case, (see doc. 47 at FN 4). The Court will not vacate the prior Opinion, however, because it was not the primary reason for denial of the prior Motion to Dismiss. Technically, then, the Court has “reconsidered” that portion of its prior Opinion, but because it does not change the outcome in the case, it will not grant Defendant's request for reconsideration.
Thus, the next question is whether the Second Amendment's plain text applies to Defendant's “proposed conduct.” Bruen, 142 S.Ct. at 2134-35. If it does, then the Government then bears the burden to prove that Section 922(g)(1) is “consistent with the Second Amendment's text and historical understanding.” Id. at 2131.
Paradoxically to the present case, Range was a civil case in which the plaintiff sought “a declaration that § 922(g)(1) violated the Second Amendment as-applied to him.” Range, 69 F.4th at 99. Because Range raised an as-applied challenge, the Court of Appeals for the Third Circuit focused on his specific proposed conduct: “to possess a rifle to hunt and a shotgun to defend himself at home.” Id. at 103. The “material facts” of Range's challenge also included details such as the factual circumstances of Range's prior offense, his sentence, the conviction's age, and Range's subsequent conduct. Id. at 98-99.
The Indictment here is silent on Defendant's specific proposed conduct, and the factual history of Defendant's prior offenses. That said, taking the allegations in the Indictment as true, prior to possessing the ammunition, Defendant could have proceeded just as the plaintiff in Range, by seeking a declaratory judgment that the Second Amendment allowed him to possess ammunition (and/or a firearm), notwithstanding his criminal past. Defendant has declined to do so, and instead has raised his as-applied Second Amendment claim after his alleged possession of ammunition, and the culmination of the criminal charges against him.
Absent from Defendant's filings is any mention of the purpose of his possession of the ammunition in question, much less, the only Second Amendment-protected purpose the Supreme Court has recognized: self-defense. See District of Columbia v. Heller, 554 U.S. 570, 635 (2008). The Court finds that Defendant has failed to present facts to address his specific (not proposed but alleged) conduct, and it could end its analysis here.
The parties debate whether Defendant is compelled to present facts about the circumstances of his ammunition possession, because as an as-applied challenger, he must show “that the acts of his that are the subject of the litigation fall outside what a properly drawn prohibition could cover.” Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 482 (1989). According to the Government, only if Defendant presents such facts as to his charged conduct, does the Government bear the burden of showing that Section 922(g)(1), as-applied to him, is within the historical traditions of the United States. Bruen, 142 S.Ct. at 2126; Range, 49 F.4th at 103.
Nonetheless, in the interests of completeness, just as the Court did last week in United States v. Mackall, 22-cr-0111, Doc. 95 (October 17, 2023), the Court finds that the Government has met its burden of showing that Section 922(g)(1), as applied to Defendant, is “consistent with the Nation's historical tradition of firearm regulation.” Id. at 2130.
This Court adopts the Government's opposition (at Doc. 74 pages 11-15) which appropriately set forth its historical underpinnings.
In Mackall, this Court quoting United States v. Johnson, Crim. No. 23-77, 2023 WL 6321767 (E.D. Pa. Sept. 27, 2023) (J. Pappert), stated as follows:
“Historical tradition can be established by analogical reasoning, which ‘requires only that the government identify a well-established and representative historical analogue, not a historical twin.'” Range, 69 F.4th at 103 (quoting Bruen at 2133). “Regulations targeting longstanding problems must be ‘distinctly similar' to a historical analogue, but ‘modern regulations that were unimaginable at the founding' need only be ‘relevantly similar' to one.” Id. The question is “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified.” Bruen at 2133.
...
Firearm regulation in the era of the Second Amendment's ratification disarmed individuals who “posed a potential danger” to others. Range, 69 F.4th at 109-110 (Ambro, J., concurring). For example, during the American Revolution, Pennsylvania and Massachusetts disarmed British loyalists who refused to swear allegiance to the state or the United States to “eliminate[ ] the opportunity for [them] to violently protest the actions of the [state] government.'” Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early Origins of Gun Control, 73 Fordham L. Rev. 487, 506-07 (2004), quoted in Folajtar v. Attorney General, 980, F.3d at 915 (Bibas, J., dissenting).
The understanding that dangerous individuals could be disarmed persisted after ratification. In some states during the mid-19th century, if individuals were “reasonably accused of intending to injure another or breach the peace,” they could be subject to firearm restrictions that did not apply to others. Bruen, 142 S.Ct. at 2148-2149 (2022).
...
Johnson's prior convictions are for unlawfully carrying firearms and receiving psir property. See 18 Pa. Cons. Stat. Sections 6106, 6108, 3925. Those convictions indicate that he presents a potential danger to society and cannot be trusted to obey firearm regulations. Johnson falls into the historical group of people who “may be disarmed if convicted of making an improper or dangerous use of weapons.” Bruen, 142 S.Ct. at 2152. Range, by contrast, has pleaded guilty to a misdemeanor of making a false statement to obtain food stamps, and had a criminal history otherwise limited to traffic tickets and fishing without a license. Range at 98.Johnson, 2023 WL 6321767, at *2-3. See also U.S. v. Wise, Crim. No. 21-511, 2023 WL 6260038, at *6-7 (W.D. Pa. Sept. 26, 2003) (J. Hardy).
As the Honorable W. Scott Hardy stated, “Judge Ambro's concurrence in Range underscores that the decision is a “narrow one” as the majority expressly stated. See Range, 69 F.4th at 106, 109-113 (Ambro, J., concurring). Judge Ambro clarified that the Government's failure to carry its burden in that particular case “does not spell doom for § 922(g)(1),” and it remains “presumptively lawful,” “because it fits within our Nation's history and tradition of disarming those persons who legislatures believed would, if armed, pose a threat to the orderly functioning of society.” Id. at 109, 110. Unlike those individuals, Range committed a “small-time offense,” “[h]e did so with a pen to receive food stamps for his family,” and there was nothing to suggest that he “pose[d] a threat to the orderly functioning of society.” Id. at 112. As Judge Ambro pointed out, Range therefore “stands apart from most other individuals subject to § 922(g)(1) whom we fear much like early Americans feared loyalists or Reconstruction-era citizens feared armed tramps.”
To that end, this Court joins others who have agreed and have considered a defendant's specific criminal history - such as being “a repeat felon who traffics in deadly and illegal controlled substances,” United States v. Reichenbach, No. 4:22-CR-57, 2023 WL 5916467, at *10 (M.D. Pa. Sep. 11, 2023), and it considers Defendant's present charges, in determining that his as-applied challenge is without merit.
As recently found by the Honorable Cathy Bissoon, in United States v. Jones, “consideration of Defendant's present charges, for purposes of an as-applied challenge, logically and necessarily flow from the hypothetical. If, for example, a defendant with no significant criminal history is charged with discharging a firearm during a crime of violence, the Court would examine historical analogues to the firearm offense - not to traffic violations in his or her past.” 2023 WL 6541040, fn 1 (W.D. Pa. October 6, 2023).
This Court further relies upon and cites the recent succinct analysis of the Honorable Judge Cathy Bissoon in United States v. Jones, 2023 WL 6541040 (W.D. Pa. October 6, 2023) as basis for this decision. Jones' post-Bruen and Range challenge to the Indictment was rejected on an as-applied and facial challenge upon consideration of the present charges, and criminal history of Defendant, which also included drug trafficking offenses, rendered Defendant's challenges meritless. Citing two other recent cases, Judge Bissoon noted that the law has long recognized that “drugs and guns are a dangerous combination.” Jones, 2023 WL 6541040, at *1, citing United States v. Cotton, 2023 WL 6465836, at *4 (E.D. Pa. October 4, 2023) and United States v. Wise, 2023 WL 6260038, *4 (W.D. Pa. September 26, 2023). This Court finds Jones to be analogous and follows the analysis of its esteemed colleague in that case. The Government has met its burden to show that “our Republic has a longstanding history and tradition of depriving people [like Young] of their firearms.” Range at 106 (emphasis added).
B. Section 922(g)(1) Does Not Violate the Commerce Clause on Its Face or As-Applied to Defendant.
The Commerce Clause permits Congress to “regulate Commerce . . . among the several States.” U.S. Const., art. I, § 8. Section 922(g)(1) prohibits felons from possessing ammunition “in or affecting commerce.”
Defendant argues in his Second Motion to Dismiss that Section 922(g)(1) exceeds Congress's powers under the Interstate Commerce Clause. Doc. 72. Again, on the face of the Indictment (which the Government will have the burden to prove at trial) the ammunition Defendant possessed was manufactured outside of Pennsylvania. That satisfies Section 922(g) and the Commerce Clause: “proof that the firearm was manufactured in a state other than the state where the possession occurred . . . meets the minimal nexus required to establish that the firearm affected interstate commerce.” United States v. Shambry, 392 F.3d 631, 634 (3d Cir. 2004) (discussing Section 922(g) in the analytically identical context of a firearm). Because Section 922(g) applies to both firearms and ammunition, ammunition that was manufactured in a state other than the state where the possession occurred also affects interstate commerce. There are no grounds to distinguish firearms and ammunition in this context, as two parts of the same statute with the same jurisdictional element should be treated the same way.
In United States v. Singletary, 268 F.3d 196 (3d Cir. 2001), which Defendant acknowledges remains binding authority, the Court of Appeals for the Third Circuit found that Section 922(g) is a permissible exercise of the Commerce Clause power. Id. at 204; see also, e.g., United States v. Penn, 870 F.3d 164, 165 n.2 (3d Cir. 2017) (reaffirming Singletary). Other Circuits have uniformly agreed. E.g., United States v. Henry, 429 F.3d 603, 619-20 (6th Cir. 2005); United States v. Williams, 410 F.3d 397, 400 (7th Cir. 2005). Even Judge Porter's concurrence in Range, which describes the history of the Commerce Clause, does not suggest that Section 922(g)(1) violates that Clause. 69 F.4th at 106-09 (Porter, J., concurring).
The Court therefore declines Defendant's invitation to “climb the legal mountain on the horizon,” because Singletary remains binding precedent. Doc. 72. For these reasons, Defendant's Second Motion to Dismiss will be DENIED. Doc. 72.
V. Conclusion
In the months subsequent to the Bruen and Range decisions, with the exception of a few outliers, which this Court declines to follow, the United States District Courts in Pennsylvania have considered similar issues to those raised by Defendant, and have uniformly rejected similar challenges. For these reasons, and for others stated in the Government's opposition, Defendant's Motion to Reconsider (doc. 71) and his Second Motion to Dismiss (doc. 72) are DENIED.
SO ORDERED.