United States v. Bernard

1

UNITED STATES OF AMERICA, Plaintiff, v. JAE MICHAEL BERNARD, Defendant.

No. 22-CR-03 CJW-MAR

United States District Court, N.D. Iowa, Cedar Rapids Division

December 5, 2022

MEMORANDUM OPINION AND ORDER

C.J Williams, United States District Judge.

I. INTRODUCTION

This matter is before the Court on the government's objection (Doc. 68) to the Report and Recommendation (“R&R”) of the Honorable Mark A. Roberts, United States Magistrate Judge, recommending that the Court grant defendant's motion to withdraw his guilty plea. (Doc. 67). Inextricably intertwined in defendant's motion to withdraw his guilty plea is his motion to dismiss the indictment, claiming that Title 18, United States Code, Section 922(g)(9) is unconstitutional. (Doc. 54). The government timely resisted that motion (Doc. 62) and consequently, both sides have fully briefed the merits of the motion to dismiss. In his R&R, Judge Roberts did not address the motion to dismiss; the Court did not refer that motion to Judge Roberts. The Court finds here that both motions are ripe for disposition.

For the following reasons, the Court overrules the government's objections and adopts Judge Roberts' R&R, thereby permitting defendant to withdraw his guilty plea. At the same time, the Court denies defendant's motion to dismiss the indictment.

II. STANDARD OF REVIEW

The Court reviews Judge Roberts' R&R under the statutory standards found in Title 28, United States Code, Section 636(b)(1):

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

See also FED. R. CIV. P. 72(b) (stating identical requirements). While examining these statutory standards, the United States Supreme Court explained:

Any party that desires plenary consideration by the Article III judge of any issue need only ask. Moreover, while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.

Thomas v. Arn, 474 U.S. 140, 154 (1985). Thus, a district court may review de novo any issue in a magistrate judge's report and recommendation at any time. Id. If a party files an objection to the magistrate judge's report and recommendation, the district court must review the objected portions de novo. 28 U.S.C. § 636(b)(1). In the absence of an objection, the district court is not required “to give any more consideration to the magistrate [judge]'s report than the court considers appropriate.” Thomas, 474 U.S. at 150.

De novo review is non-deferential and generally allows a reviewing court to make an “independent review” of the entire matter. Salve Regina Coll. v. Russell, 499 U.S. 225, 238 (1991); see also Doe v. Chao, 540 U.S. 614, 618-19 (2004) (noting de novo review is “distinct from any form of deferential review”). The de novo review of a magistrate judge's report and recommendation, however, only means a district court “‘give[s] fresh consideration to those issues to which specific objection has been made.'” United States v. Raddatz, 447 U.S. 667, 675 (1980) (quoting H.R. Rep. No. 94-1609, at 3 (1976), reprinted in U.S.C.C.A.N. 6162, 6163 (discussing how certain amendments affect Section 636(b))). Thus, although de novo review generally entails review of an entire matter, in the context of Section 636 a district courts required de novo review is limited to “de novo determination[s]” of only “those portions” or “specified proposed findings” to which objections have been made. 28 U.S.C. § 636(b)(1).

Consequently, the Eighth Circuit Court of Appeals has indicated de novo review would only be required if objections were “specific enough to trigger de novo review.” Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989). Despite this “specificity” requirement to trigger de novo review, the Eighth Circuit Court of Appeals has “emphasized the necessity of . . . retention by the district court of substantial control over the ultimate disposition of matters referred to a magistrate [judge].” Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994). As a result, the Eighth Circuit Court of Appeals has concluded that general objections require “full de novo review” if the record is concise. Id. Even if the reviewing court must construe objections liberally to require de novo review, it is clear to this Court that there is a distinction between making an objection and making no objection at all. See Coop. Fin. Ass'n, Inc. v. Garst, 917 F.Supp. 1356, 1373 (N.D. Iowa 1996).

In the absence of any objection, the Eighth Circuit Court of Appeals has indicated a district court should review a magistrate judge's report and recommendation under a clearly erroneous standard of review. See Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996); see also Taylor v. Farrier, 910 F.2d 518, 520 (8th Cir. 1990) (noting the advisory committee's note to Federal Rule of Civil Procedure 72(b) indicates “when no timely objection is filed the court need only satisfy itself that there is no clear error on the face of the record”); Branch, 886 F.2d at 1046 (contrasting de novo review with “clearly erroneous standard” of review, and recognizing de novo review was required because objections were filed).

III. BACKGROUND

On January 6, 2022, a grand jury charged defendant and another person in a three-count indictment. (Doc. 3). Defendant was named only in Count 1, which charged him with possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of Title 18, United States Code, Sections 922(g)(9) and 924(a)(2). (Id.).

On June 9, 2022, defendant pled guilty without a plea agreement to the charge before Judge Roberts, who issued an R&R recommending the Court accept defendant's guilty plea. (Docs. 34, & 35).

On June 23, 2022, the United States Supreme Court held unconstitutional a State of New York's penal code provision making it a crime to possess a firearm outside the home without a license, when licensing required applicants to satisfy a “proper cause” for possessing a firearm by “demonstrat[ing] a special need for self-protection distinguishable from that of the general community.” N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S.Ct. 2111, 2117 (2022). In Bruen, the Supreme Court determined that all lower courts had erred in applying means-end scrutiny of statutes regulating firearms, finding that statutes regulating conduct protected by the Second Amendment are presumptively unconstitutional unless the government can show that “it is consistent with the Nation's historical tradition of firearm regulation.” Id. at 2129-30. “Bruen transformed and left uncharted much of the legal landscape” of Second Amendment jurisprudence. United States v. Charles, 22-CR-00154, 2022 WL 4913900, at *1 (W.D. Tex. Oct. 3, 2022).

On June 24, 2022, the Court adopted Judge Roberts' R&R and accepted defendant's guilty plea. (Doc. 42).

On August 11, 2022, the United States Probation Office filed its draft presentence investigation report (“PSR”) (Doc. 45). The PSR determined defendant's base offense level was 20 with a four-level enhancement for the number of firearms and a three-level reduction for acceptance of responsibility, resulting in a total offense level of 21. (Id., at 9). The PSR placed defendant in Criminal History Category I (Id., at 12), resulting in an advisory guidelines range of 37-46 months (Id., at 19).

On August 25, 2022, defendant filed an unresisted motion for an extension of time to file objections to the draft PSR, arguing that he needed more time to review discovery. (Doc. 48). The Court granted defendant's motion, giving him until September 6, 2022, to file objections. (Doc. 49).

On September 6, 2022, defendant filed a second, unresisted motion for extension of time to file objections to the draft PSR, this time citing a death in defense counsel's family. (Doc. 51). The Court granted defendant's motion, giving defendant until September 20, 2022. (Doc. 52).

On September 19, 2022, defendant filed the instant motion to withdraw his guilty plea and to dismiss the indictment. (Doc. 54).

On September 20, 2022, defendant filed a third motion for an extension of time to file objections to the PSR, this time citing the need to review discovery and the prolonged absence of defense counsel from the office, asking for one additional day. (Doc. 57). The Court granted defendant's motion. (Doc. 58).

On September 21, 2022, defendant filed objections to the PSR. (Doc. 60). Among other things, defendant objected to the base offense level of 20, asserting that it should be 14, with an advisory guidelines range of imprisonment of 18-24 months. (Id., at 2). The final PSR was filed on September 28, 2022. (Doc. 63).

IV. ANALYSIS

A. Judge Roberts' R&R and the Government's Objections

Judge Roberts found that the intervening change in the law-the Supreme Court's decision in Bruen-constituted just grounds for defendant to withdraw his guilty plea. (Doc 67, at 7-8). Without deciding whether Section 922(g)(9) is unconstitutional, Judge Roberts found that it was at least a plausible argument such that defendant “should have the opportunity to have the merits of his constitutional argument considered.” (Id., at 8). Judge Roberts went on to review the other pertinent factors: 1) whether defendant asserts his innocence; 2) the length of time between the guilty plea and the motion...