United States v. Morales-Lopez

92 F.4th 936

UNITED STATES of America, Plaintiff - Appellant, v. Jonathan Alexander MORALES-LOPEZ, Defendant - Appellee.

No. 22-4074

United States Court of Appeals, Tenth Circuit

FILED February 9, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. No. 2:20-CR-00027-JNP-1)

Nathan Jack, Assistant United States Attorney (Trina A. Higgins, United States Attorney, and Jennifer P. Williams, Assistant United States Attorney, on the briefs), Salt Lake City, Utah, for Plaintiff-Appellant.

Scott Keith Wilson, Federal Public Defender (Jessica Stengel and Bretta Pirie, Assistant Federal Public Defenders, with him on the brief), Salt Lake City, Utah, for Defendant-Appellee.

Before CARSON, BALDOCK, and EBEL, Circuit Judges.

BALDOCK, Circuit Judge.

Federal law prohibits certain people from possessing firearms. 18 U.S.C. § 922(g). The portion of § 922(g) at issue in this appeal is subsection (g)(3), which in relevant part forbids any person "who is an unlawful user of . . . any controlled substance" from possessing a firearm. A jury convicted Defendant Jonathan Morales of violating § 922(g)(3). But post-trial, the district court granted Defendant's motion to dismiss the charge as violative of the Fifth Amendment's Due Process Clause. U.S. Const. amend. V. According to the district court, subsection (g)(3)'s phrase "unlawful user" was unconstitutionally vague both on its face and as applied to the facts underlying Defendant's conviction. United States v. Morales-Lopez, 2022 WL 2355920 (D. Utah 2022) (unpublished). The Government appeals. Exercising jurisdiction pursuant to 18 U.S.C. § 3731, we first hold, based on binding precedent, that the district court erred in considering whether § 922(g)(3) was unconstitutional on its face. We further hold, again based on binding precedent, that the district court erred in determining § 922(g)(3) was unconstitutional as applied to Defendant's criminal conduct. Accordingly, we reverse and remand with instructions to reinstate the jury's verdict.¹

I.

Let us begin with the facts established at trial. Defendant Morales and Jose Amaya were partners in crime. On January 10, 2020, the two men were stealing firearms and ammunition from the Sportsman's Warehouse in Midvale, Utah during morning business hours. Amaya served as point man and Defendant as lookout. Store employees observed the two men on security video and phoned police. While Amaya gathered the ware, Defendant moved to the front of the store. Defendant exited the store and walked west, away from the parking lot. Amaya's Nissan Altima, in which the two suspects had arrived, was parked across the street in a handicap space directly in front of the store.

Meanwhile, a number of officers responded to the call of a robbery in progress. Dispatch informed officers that Defendant was leaving the store. Sergeant Chacon and Officer Wathen arrived on scene about the same time. Sergeant Chacon "observed a Hispanic male dressed in a black jacket, jeans, and a black hat which fit the description given." The two officers ordered Defendant to the ground and he complied. During a Terry frisk, Officer Wathen recovered a loaded semiautomatic .40 caliber Smith & Wesson Shield handgun from Defendant's waistband.² Investigation revealed Amaya had stolen the firearm found on Defendant from the same Sportsman's Warehouse five days earlier on January 5. Officer Wathen handcuffed Defendant and placed him in the backseat of his patrol car.

About the same time, Officer Jonkman arrived on the scene and parked his vehicle directly behind Amaya's Nissan to "block it in." While providing "over-watch security," Jonkman witnessed Defendant acting suspiciously. Officer Jonkman testified:

So I went back over by Officer Wathen's patrol car. And shortly later 1 noticed [Defendant] in the back of the patrol car making some extreme movements. To me it kind of worried me, believing that maybe . . . somebody missed a weapon or something on him. But it looked like he was trying to maneuver something. So I actually moved myself to the front of the patrol car and spoke to other officers and said, hey, something's going on in there. And it was determined that . . . [Defendant] was going to be taken out of the car and another search be done. . . .

After he was taken out of the car, I noticed in between the back cushion of the seat and the bottom cushion a plastic bag sticking out about two inches, sticking out from in between the seats.

Between the cushions behind where Defendant had been sitting, Officer Jonkman recovered a plastic baggy containing about 5.7 grams of methamphetamine. Detective Davis testified that in his opinion, in the absence of other evidence or factors indicating an intent to distribute, the 5.7 grams was intended for personal use. Officer Wathen additionally testified that his standard practice was to inspect and clean the backseat of his patrol car after an individual had occupied and vacated the seat. Wathen confirmed no one other than Defendant had been in the backseat of his patrol car that day.

After securing Defendant and Amaya, officers turned their attention to Amaya's Nissan Altima. Officer Bartholomew testified he saw what looked to be a glass pipe used for smoking drugs in the vehicle's center console. Once officers impounded the vehicle and obtained a search warrant, they recovered the glass pipe which contained methamphetamine residue. Officers also recovered a butane lighter and baggy containing about 22.7 grams of methamphetamine from the driver's door panel. This amount of methamphetamine, according to Detective Davis, "without other factors or indicators," was "consistent with distribution."

Two months later, while Defendant was in custody awaiting trial, Officer Atkin interviewed him regarding a separate investigation apparently involving a drug house and a drug dealer named Jesus. During this conversation, Defendant admitted to using drugs regularly in early December 2019, about a month prior to his arrest at the Sportsman's Warehouse. Defendant confirmed that he went to a house to use methamphetamine on the day in question, but his memory was unclear because he had been using and had not slept for a number of days. Defendant did not know who owned the house. Defendant mentioned he was purchasing user amounts of methamphetamine from Jesus around the same time. Defendant told Officer Atkin "yes, I have been—was buying from him." Defendant continued: "I would see [Jesus] on the street . . . there were always people that I knew that would see me . . . , and they would ask me, 'Hey, you want some?' I would say, 'Yes.' " Defendant also told Officer Atkin that he had smoked marijuana, still illegal in Utah, with Amaya at the latter's invitation around December 6.

II.

At trial, the district court instructed the jury that an "unlawful user" of a controlled substance as the language appears in § 922(g)(3) is an individual who "had been using a controlled substance on a regular and ongoing basis at the time he was found to be in possession of a firearm." After the jury returned a verdict of guilty based on the foregoing evidence, the district court granted Defendant's motion to dismiss the § 922(g)(3) count because, in the court's view, subsection (g)(3) was unconstitutionally vague both on its face and as applied. Because the district court granted Defendant's motion to dismiss as a matter of law upon an uncontested trial record, we review both its constitutional rulings de novo. United States v. Wenger, 427 F.3d 840, 851 (10th Cir. 2005); see also United States v. Copeland, 921 F.3d 1233, 1241 (10th Cir. 2019).

A.

Addressing Defendant's facial challenge first, we observe that for over a century federal courts have adjudicated challenges to the constitutionality of penal statutes by relying on the general rule that a defendant to whose conduct a statute clearly applies may not pose a facial challenge to the statute. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (citing cases). In other words, "[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." Holder v. Humanitarian Law Project, 561 U.S. 1, 20, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010) (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). Even where a statute threatens to chill the fundamental right to speech, a "plaintiff whose speech is clearly proscribed cannot raise a successful vagueness claim" to the face of the statute. Expressions Hair Design v. Schneiderman, 581 U.S. 37, 48, 137 S.Ct. 1144, 197 L.Ed.2d 442 (2017) (quoting Holder, 561 U.S. at 20, 130 S.Ct. 2705).

All this makes perfectly good sense. The "first essential of due process of law" is grounded in the principle that where a person of ordinary intelligence may reasonably understand that the law proscribes his own conduct, criminal responsibility justifiably may follow. United States v. Davis, — U.S. —, 139 S. Ct. 2319, 2325, 204 L.Ed.2d 757 (2019). "Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed." Parker v. Levy, 417 U.S. 733, 757, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (quoting United States v. Harriss., 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954)). After all, why should one to whom application of a statute is plainly constitutional be allowed to attack the law for the reason that it might be unconstitutionally vague when applied to hypothetical facts not before the court?

Where the text of a statute applies to a violator's conduct, either by its plain language or "settled interpretations," these "violators certainly are in no position to say that they had no adequate advance notice that they would be visited with punishment. They are not punished for violating an unknowable...