United States v. Guthery

1

United States of America, Plaintiff, v. Raykheem Andrew Guthery, Defendant.

No. 2:22-cr-00173-KJM

United States District Court, E.D. California

March 28, 2023

ORDER

Defendant Raykheem Guthery is charged with possessing ammunition in violation of 18 U.S.C. §§ 922(g)(1) and (8), which apply to those who have previously been convicted of a felony and who are the subject of certain court orders respectively. See generally Indictment, ECF No. 10. Mr. Guthery moves to dismiss the charges against him for violation of the Second Amendment, and to suppress evidence under the Fourth Amendment. The court held a hearing on these matters on February 6, 2023. Mins. Hr'g, ECF No. 44. Douglas Beevers appeared on behalf of Mr. Guthery, and Adrian Kinsella appeared on behalf of the government. Id. For the reasons below, the court denies both motions.

I. BACKGROUND

In the summer of 2022, two Solano County Sheriff's deputies saw a car on the road without license plates and suspected a violation of California Vehicle Code section 5200(a). Mot Suppress at 2, ECF No. 33;^[1] see Reply Mot. Suppress at 1, ECF No. 42; Body Camera Excerpt at 0:55, Opp'n Mot. Suppress Ex. 2, ECF No. 39-2;^[2] see also Cal. Veh. Code § 5200.^[3] After they pulled the car over, Mr. Guthery conceded he was the driver. Reply Mot. Suppress at 1. When one deputy asked for identification, Mr. Guthery “claimed not to have identification and gave a false name and date of birth.” Id. at 2. According to the deputies, Mr. Guthery appeared to be intoxicated. See id. at 3. For example, one deputy wrote in a later report that Mr. Guthery “had slow, slurred speech, and displayed objective signs and symptoms of being under the influence of alcohol and or drugs.” Police Reports Excerpts at 2, Opp'n Mot. Suppress Ex. 1, ECF No. 39-1. The other deputy saw marijuana and a scale through the car's window. Reply at 2; Police Reports Excerpts at 7. Mr. Guthery admitted he was “high,” Body Camera Excerpt at 3:43, and told the deputies they would find about two pounds of marijuana in the car, id. at 5:18. One of the deputies thus concluded Mr. Guthery also was in violation of California Vehicle Code section 23152(f). Police Reports Excerpts at 3; Body Camera Excerpt at 4:59; see also Cal. Veh. Code § 23152(f).^[4]

The deputies confirmed with dispatch that the person Mr. Guthery claimed to be did not have a valid driver's license, so they suspected he was in violation of California Vehicle Code section 12500. Police Reports Experts at 2; see Body Camera Excerpt at 9:16; see also Cal. Veh. Code § 12500.^[5] The deputies arrested Mr. Guthery and found he was carrying a gun and ammunition. Body Camera Excerpt at 9:16, 10:07; Reply Mot. Suppress at 2. Mr. Guthery also possessed more than $600 in cash, in different denominations. Police Reports Excerpts at 4; see Body Camera Excerpt at 11:03. Deputies found Mr. Guthery's identification card, which led them to believe Mr. Guthery previously had given them a false name. See Body Camera Excerpt at 11:25; see Opp'n Mot. Suppress at 3, ECF No. 39. The deputies then searched the car and found more scales and drugs, including MDMA and LSD. Police Reports Excerpts at 3-4; Opp'n Mot. Suppress at 4. The deputies took Mr. Guthery to Solano County Jail and towed the car. Opp'n Mot. Suppress at 4; Police Reports Excerpts at 5; see also Cal. Veh. Code § 22651(h).^[6]

As noted, the U.S. Attorney charged Mr. Guthery with violations of 18 U.S.C. §§ 922(g)(1) and (8), based on his possession of ammunition. Indictment at 1-2. Mr. Guthery moves to dismiss the indictment, arguing the charges violate the Second Amendment. Mot. to Dismiss (MTD), ECF No. 31. The government opposes, Opp'n MTD, ECF No. 40, and Mr. Guthery has replied, Reply MTD, ECF No. 41. Mr. Guthery filed a supplemental reply, attaching a recent Fifth Circuit case, United States v. Rahimi, 59 F.4th 163 (5th Cir. 2023), withdrawn and superseded by 61 F.4th 443 (5th Cir. 2023), pet. for cert. filed, No. 22-915 (U.S. Mar. 21, 2023). Suppl. Reply MTD, ECF No. 43. The court in Rahimi held 18 U.S.C. § 922(g)(8) is unconstitutional in light of the Supreme Court's decision in N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S.Ct. 2111 (2022). 61 F.4th at 461. The court provided the government an opportunity to file a supplemental response to discuss the impact of the Fifth Circuit's decision, if any, on this case. Min. Order, ECF No. 45. The government responded. Surreply, ECF No. 46. The court then submitted the matter.

Mr. Guthery also moves to suppress evidence under the Fourth Amendment. Mot. Suppress. The government opposes, Opp'n Mot. Suppress, and Mr. Guthery has replied, Reply Mot. Suppress.

II. MOTION TO DISMISS

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. Relatively recently, the Supreme Court determined the language of the amendment “confers an individual right to keep and bear arms,” District of Columbia v. Heller, 554 U.S. 570, 622 (2008), “the core lawful purpose of [which is] self-defense,” id. at 630; see also McDonald v. City of Chicago, 561 U.S. 742, 767-68 (2010). The Court has noted, however, that right “is not unlimited.” Heller, 554 U.S. at 626. Instead, it is tempered by “presumptively lawful regulatory measures,” id. at 627 n.26, including but not limited to “longstanding prohibitions on the possession of firearms by felons,” id. at 626-27. In McDonald, the Supreme Court held the Second Amendment's personal right to bear arms applied against the states as well as the federal government, but repeated the assurances it made in Heller, that its “holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons'” and other persons. McDonald, 561 U.S. at 786 (quoting Heller 554 U.S. at 626-27).

Most recently, in striking down New York's public-carry licensing regime, the Supreme Court held “the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home.” Bruen, 142 S.Ct. at 2122. And it “decline[d] to adopt [the] two-part approach” many federal courts of appeals, including the Ninth Circuit, had applied following the Court's decision in Heller. Id. at 2126; see, e.g., United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013). Under the two-step approach, courts considered “history with means-end scrutiny.” Bruen, 142 S.Ct. at 2125. At step one, the government could “justify its regulation by establishing that the challenged law regulates activity falling outside the scope of the right as originally understood.” Id. at 2126 (internal marks and citation omitted). However, if the historical evidence was inconclusive or suggested the regulated activity was protected, courts moved to step two. Id. At step two, courts determined the appropriate level of scrutiny depending on whether and to what extent the regulation burdened the “core of the Second Amendment right,” i.e., self-defense in the home. Id. For example, if the regulation burdened the core of the Second Amendment right, courts applied strict scrutiny, asking whether the government could show “the law is narrowly tailored to achieve a compelling governmental interest.” Id. (internal marks and citation omitted). In rejecting the two-step approach, the Supreme Court in Bruen settled on a new historical test: “When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.” Id. at 2129-30.

The court considers each of the two charges against Mr. Guthery under this test and other binding authority.

A. Section 922(g)(1): Possession of Ammunition after Felony Conviction

Under 18 U.S.C. § 922(g)(1), it is unlawful for any person who has been convicted of a felony to possess a firearm or ammunition. See 18 U.S.C. § 922(g)(1). Mr. Guthery contends this prohibition “violates the Second Amendment as interpreted by [ Bruen ], because in 1787 there was no history of restricting the ammunition possession rights of persons based on prior convictions.” MTD at 1. The Ninth Circuit has observed, “‘the right to possess firearms for protection implies a corresponding right' to obtain the bullets necessary to use them.” Jackson v. City of San Francisco, 746 F.3d 953, 967 (9th Cir. 2014) (also noting “Heller did not differentiate between regulations governing ammunition and regulations governing the firearms themselves” (citations omitted)). Assuming that Second Amendment protections extend to possession of ammunition, this court finds the same analysis applies to firearms as ammunition given the coextensive nature of the rights. Cf. United States v. Barnes, No. 22-43, 2023 WL 2268129, at *2 (S.D.N.Y. Feb. 28, 2023) (finding defense argument, that “Government must prove that regulation of ammunition passes muster under the historical analysis required by Bruen ” where defendant is charged with ammunition and not firearm possession, lacked merit).

Before Bruen, the Ninth Circuit held § 922(g)(1) does not violate the Second Amendment. See generally United States v. Phillips, 827 F.3d 1171, 1175 (9th Cir. 2016). This court is bound by that decision unless it has been “effectively overruled.” Miller v Gammie, 335 F.3d 889, 899 (9th Cir. 2003); see also Head v. Wilkie, 936 F.3d 1007, 1008 (9th Cir. 2019) (holding district court not bound by circuit precedent that had been effectively overruled). “A prior decision is effectively overruled if intervening higher authority has...