United States v. Espinoza-Melgar

687 F.Supp.3d 1196

UNITED STATES of America, Plaintiff, v. Jose Angel ESPINOZA-MELGAR, Defendant.

Case No. 2:21-cr-204-DAK

United States District Court, D. Utah

Signed August 16, 2023

Angela Jean Clifford, Jennifer Muyskens, Jennifer E. Gully, Assistant U.S. Attorneys, U.S. Attorney's Office, Salt Lake City, UT, Jamie Z. Thomas, Assistant U.S. Attorney, Ray Quinney & Nebeker PC, Salt Lake City, UT, for Plaintiff.

Nathan K. Phelps, Natalie A. Benson, Scott Keith Wilson, Public Defenders, Federal Public Defender District of Utah, Salt Lake City, UT, for Defendant.

MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S MOTIONS TO DISMISS COUNT 2 OF THE INDICTMENT

DALE A. KIMBALL, United States District Judge

This matter is before the court on Defendant Jose Angel Espinoza-Melgar's Motion to Dismiss Count 2 of the Indictment and Second Motion to Dismiss Count 2 of the Indictment. Both motions pertain to 18 U.S.C. § 922(g)(3), which restricts the possession of firearms for an individual who is an "unlawful user of or addicted to any controlled substance." Defendant's first motion is based on the United States Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022). Based on Bruen, Defendant argues that § 922(g)(3) violates his Second Amendment right to possess a firearm. The second motion challenges § 922(g)(3) as being unconstitutionally vague. On May 31, 2023, the court held a hearing on the two motions. At the hearing, Nathan K. Phelps represented Defendant, and Jennifer Muyskens represented the United States. At the conclusion of the hearing, the court took the motions under advisement.¹ The court has carefully considered the memoranda filed by the parties, the arguments made by counsel at the hearing, and the law and facts pertaining to the motions. Now being fully advised, the court issues the following Memorandum Decision and Order denying both motions to dismiss.

I. BACKGROUND

On or about March 18, 2021, Espinoza-Melgar was arrested on a felony warrant for aggravated robbery in Salt Lake City, Utah.² ECF No. 65 at 1. During an inventory search of the vehicle that Espinoza-Melgar was driving, the officers discovered (1) an allegedly stolen firearm with the name "Sgt. Joshua Matthews" engraved on the firearm's slide, and (2) three grams of marijuana. After he was read his Miranda rights and agreed to speak with officers, Espinoza-Melgar "stated he believed the firearm was stolen due to the engraving" and "admitted to having an addiction to using marijuana, saying that he has been using marijuana every day since the fifth grade." Id. at 2.

On May 5, 2021, the grand jury returned an Indictment against Espinoza-Melgar, charging him with two counts: Count 1, Possession of a Stolen Firearm, in violation of 18 U.S.C. § 922(j); and Count 2, Unlawful User of a Controlled Substance in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(3).

II. DISCUSSION

Espinoza-Melgar first moved to dismiss Count 2 of the Indictment, arguing that 18 U.S.C. § 922(g)(3) violates the Second Amendment to the United States Constitution in light of the Supreme Court's recent decision in Bruen, 142 S. Ct. 2111 (2022). Espinoza-Melgar later moved to dismiss Count 2 on the additional ground that § 922(g)(3) is unconstitutionally vague, violating both the Constitution's separation-of-powers framework and the Fifth Amendment to the Constitution. The court considers these arguments in turn.

A. Constitutionality of 18 U.S.C. § 922(g)(3) After Bruen

Section 922(g)(3) states in relevant part that "[i]t shall be unlawful for any person who is an unlawful user of or addicted to any controlled substance to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition." Espinoza-Melgar argues that § 922(g)(3) is "no longer viable" following Bruen and that Count 2 "thus fails to state an offense." ECF No. 64 at 1.

In Bruen, the United States Supreme Court described that in the years following District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), the United States Courts of Appeals had "coalesced around a 'two-step' framework for analyzing Second Amendment challenges that combines history with means-end scrutiny." 142 S. Ct. at 2125. The Tenth Circuit was among those Courts of Appeals that employed a means-ends framework. See, e.g., United States v. Reese, 627 F.3d 792 (10th Cir. 2010).

But in Bruen, the Supreme Court rejected that framework, holding instead that "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." 142 S. Ct. at 2126. That presumption can be overcome only when the government successfully "demonstrate[s] that the regulation is consistent with this Nation's historical tradition of firearm regulation." Id. In other words, a court may uphold a regulation only when the government "affirmatively prove[s] that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms." Id. at 2127.

Thus, to determine if § 922(g)(3) remains viable post-Bruen, the court must first assess whether the Second Amendment's plain text covers Espinoza-Melgar's alleged conduct. As explained below, the court concludes that the Second Amendment indeed covers Espinoza-Melgar's alleged conduct. The court must then determine whether the presumptive constitutional protection of Espinoza-Melgar's alleged conduct can be overcome based on the government's showing that § 922(g)(3) is consistent with the United States' historical tradition of firearm regulation. The court finds that the government has successfully demonstrated that § 922(g)(3) is consistent with our country's historical tradition of regulating firearms.

1. Espinoza-Melgar's Alleged Conduct Was Covered by the Second Amendment's Plain Text.

The Second Amendment to the United States Constitution states 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." The Heller Court held that the Second Amendment's plain text "guarantee[s] the individual right to possess and carry weapons in case of confrontation."³ 554 U.S. at 591, 128 S.Ct. 2783.

The United States alleges that Espinoza-Melgar violated § 922(g)(3) because, while knowing that he was an unlawful user of a controlled substance (which he has admitted), he knowingly possessed a firearm. ECF No. 1 at 2. Because Espinoza-Melgar violated the law as an unlawful user of a controlled substance, the United States argues that he is not among "the people" to whom the right codified in the Second Amendment is endowed. ECF No. 65 at 6. Thus, the United States contends, "regulations governing non-law-abiding citizens' use of firearms and ammunition do not implicate Bruen and Heller." Id. In support of this contention, the United States emphasizes that "Bruen and its concurring opinions define the Second Amendment as applying to 'law-abiding citizens' at least twenty-one times." Id.

The court rejects this argument. First, there is no reason to think that "the people, as used in the Second Amendment, bears a different definition than "the people" as used in other constitutional provisions. Seven constitutional provisions refer to "the people": the preamble, Article I § 2, and the First, Second, Fourth, Ninth, Tenth, and Seventeenth Amendments. The Heller Court noted that, in the Second Amendment and in the other six uses (ignoring the Seventeenth Amendment's use), "the term unambiguously refers to all members of the political community, not an unspecified subset." 554 U.S. at 580, 128 S.Ct. 2783. And the Seventeenth Amendment's use of "the people," which requires United States Senators to be elected by "the people" of each State, implies no additionally restrictive definition. If "the people" includes only law-abiding citizens, then those who violate the law could plausibly lose the right not only to possess firearms, but also to peaceably assemble and to be free from unreasonable searches and seizures. The court finds that argument to be untenable.

Regarding the United States' argument that Bruen and its concurring opinions define the Second Amendment as applying to "law-abiding citizens" at least twenty-one times, the court notes that the petitioners in Bruen were "law-abiding . . . citizens." 142 S. Ct. at 2124-25. Thus, while Bruen clearly establishes that being a law-abiding citizen is sufficient to be included in "the people" to whom the Second Amendment right is endowed, any indication in Bruen that being a law-abiding citizen is necessary to be included in "the people" is dicta. See Range v. Att'y General, 69 F.4th 96,101 (3d Cir. 2023) (en banc) (finding that "the criminal histories of the plaintiffs in Heller, McDonald, and Bruen were not at issue in those cases. So, their references to 'law-abiding, responsible citizens' were dicta.").

Finally, limiting the right granted by the Second Amendment to apply only to law-abiding citizens would raise a host of questions regarding who qualifies as a "law-abiding" citizen. If an otherwise law-abiding person with a concealed firearm is pulled over for speeding or running a stop sign, would their firearm possession still be protected by the Second Amendment? Would the Second Amendment protect an adult who owned a firearm if that individual had been convicted of a misdemeanor as a child? Fortunately, these are questions that the court need not answer. The court concludes that Espinoza-Melgar is among the people protected by the Second Amendment, joining the many district courts within the Tenth Circuit that have reached the same conclusion.⁴ And it is clear that § 922(g)(3) regulates Second Amendment conduct. Thus, the Supreme Court's...