United States v. Vasquez

1

UNITED STATES OF AMERICA, Plaintiff, v. IVAN LAMAR VASQUEZ, Defendant.

No. 8:21-cr-0062-CEH-SPF

United States District Court, M.D. Florida, Tampa Division

July 10, 2023

REPORT AND RECOMMENDATION

SEAN P. FLVNN UNITED STATES MAGISTRATE JUDGE

In February 2021, the Government charged Defendant Ivan Lamar Vasquez in a one-count Indictment under the felon-in-possession statute, 18 U.S.C. §§ 922(g)(1), 924(e) (Doc. 1). Defendant pleaded guilty (see Doc. 101) but in December 2022 moved to withdraw his plea after the Eleventh Circuit issued its opinion in United States v. Jackson, No. 21-13963 2022 WL 17588240 (11th Cir. Dec. 13, 2022) (Doc. 131). Under Jackson, the minimum mandatory sentence Defendant faces if convicted is not 10 years (as it had been at the time of his change of plea hearing) but 15 years, because with his three prior state court convictions for serious drug offenses, he now meets the criteria of the Armed Career Criminal Act (see Doc. 136). The district judge granted Defendant's motion, withdrew his guilty plea (id.), and scheduled the case for an August 2023 trial (see Doc. 158).

Meanwhile in June 2022 the United States Supreme Court decided New York State Rifle & Pistol Association, Inc. v Bruen, 142 S.Ct. 2111 (2022), and clarified the test for determining if a firearm regulation complies with the Second Amendment. Defendant argues Bruen renders the felon-in-possession statute unconstitutional and moves to dismiss the indictment against him under Rule 12. Defendant does not develop his argument but states:

Currently, the Eleventh Circuit has before it an appeal on this issue in United States v. Andre Michael Dubois No. 22-10829. Rather than re-create the excellent arguments made by the parties in that appeal, the relevant sections of their appellate briefs are attached to this motion. With respect to the charged violation of 18 U.S.C. § 922(g)(1) and its constitutionality, Mr. Lamar Vasquez is similarly situated to Mr. Dubois, and incorporates herein Mr. Dubois' attached arguments on this issue.

(Doc. 156 at 2).^[1]

The Government contends Bruen does not abrogate long-standing Eleventh Circuit precedent upholding the constitutionality of 18 U.S.C. § 922(g)(1) or Supreme Court precedent suggesting that statutes disqualifying felons from possessing firearms do not offend the Second Amendment. The undersigned agrees with the Government and recommends the Court deny Defendant's motion.

I. Legal Standard

Rule 12(b)(3) of the Federal Rules of Criminal Procedure permits a defendant to request pre-trial dismissal of charges where there exists “a defect in the indictment,” such as “an infirmity of law in the prosecution.” United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir. 1987). This includes “jurisdictional claims that ‘the applicable statute is unconstitutional or that the indictment fails to state an offense.'” United States v. Faircloth, No. 2:14-cr-76-FtM-38MRM, 2015 WL 4757192, at *1 (M.D. Fla. Aug. 12, 2015) (quoting United States v. Montilla, 870 F.2d 549, 552 (9th Cir. 1989)). If a defendant is charged with violating a law that proves unconstitutional, then the indictment is defective, and the charge must be dismissed.

A district court's review of an indictment upon a motion to dismiss is not “a pretrial determination of sufficiency of the evidence.” United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992) (per curiam). Instead, a court looks to the face of an indictment to determine its sufficiency. Id. Here, the sole issue before the Court is the constitutionality of 18 U.S.C. § 922(g)(1), not the Government's ability to present evidence sufficient to prove its case against Defendant.

II. Analysis

The Court interprets Defendant's argument as a facial challenge to the constitutionality of 18 U.S.C. § 922(g)(1) (see Doc. 156 at 2, stating that “the complete ban on possession of firearms by convicted felons is not firmly rooted in historical precedent in the United States.”). In a facial challenge, a plaintiff “seeks to invalidate a statute . . . itself” and to vindicate not only his own rights “but also those of others who may be adversely impacted by the statute.” McGuire v. Marshall, 50 F.4th 986, 1003 (11th Cir. 2022) (quoting DA Mortg., Inc. v. City of Miami Beach, 486 F.3d 1254, 1262 (11th Cir. 2007)). “A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications.” Bucklew v. Precythe, 139 S.Ct. 1112, 1127 (2019). A plaintiff who brings a facial challenge “bears the burden of proving that the law could never be applied in a constitutional manner[,]” McGuire, 50 F.4th at 1003 (quotation and citation omitted), an ”especially demanding standard.” Am. Fed'n of State, Cty. & Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 863 (11th Cir. 2013).

The Second Amendment to the United States Constitution 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. But as the Supreme Court cautions, no right is unlimited. District of Columbia v. Heller, 554 U.S. 570 (2008). In Heller, the Supreme Court concluded that the Second Amendment protects the individual right to bear arms but that “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,” which the Court described as “presumptively lawful.” Id. at 625, 626, 627 n.26. Two years later, in McDonald v. City of Chicago, the Court reiterated that Heller “did not cast doubt on such longstanding regulatory measures as ‘prohibition of firearms by felons . . .'” 561 U.S. 742, 786 (2010). Applying these pronouncements, in United States v. Rozier, 598 F.3d 768, 771 (11th Cir. 2010), the Eleventh Circuit (post-McDonald) upheld the constitutionality of the federal felon-in-possession statute. The Eleventh Circuit explained that “[w]hile felons do not forfeit their constitutional rights upon being convicted, their status as felons substantially affects the level of protection those rights are accorded.” Id. “The [Supreme] Court made this clear,” the Eleventh Circuit reasoned, “when it referred to those ‘disqualified from the exercise of Second Amendment rights.'” Id. (quoting Heller, 554 U.S. at 625).

In 2012, two years after Rozier, the Eleventh Circuit, interpreting Heller, adopted a two-step framework for analyzing Second Amendment challenges to firearm regulations (as had every other circuit court). See GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1260 n. 34 (11th Cir. 2012). The first step asks if the restricted activity is protected by the Second Amendment. Id. If not, the inquiry is complete. Id. (citation omitted). But if the answer is yes, the second step requires a court to weigh the severity of the regulation against the ends the Government seeks to achieve, a process dubbed the “means-end” analysis. Id.

Fast forward ten years to June 2022, and the Supreme Court shifted the Second Amendment landscape with Bruen, holding that courts should not apply the second step -the means-end analysis - in the Second Amendment context. 142 S.Ct. at 2127. The Bruen Court explained that the means-end analysis was developed by the Courts of Appeal after Heller but that neither Heller nor the Second Amendment supported it. Id. at 212627, 2129. Put differently, under Bruen, courts may no longer balance the interests of an individual's right to possess a firearm against the Government's commitment to promoting personal and public safety to determine if a firearm regulation passes constitutional muster. Bruen's new approach anchors itself instead in the Second Amendment's text and in the history of firearm regulations, with the Government bearing the burden of “affirmatively prov[ing] that its firearm regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 2127.

Against this legal backdrop, Defendant argues that Bruen abrogates Rozier and that the felon-in-possession statute is unconstitutional because there is no historical analog for the regulation. First, Defendant emphasizes that Rozier relied on dicta from Heller that acknowledged “longstanding prohibitions on felons possessing firearms.” See Rozier, 598 F.3d at 771 (“Heller stated that ‘nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . . This language suggests that statutes disqualifying felons from possessing a firearm under any and all circumstances do not offend the Second Amendment.'”). To the contrary, the Rozier court reasoned that “to the extent that this portion of Heller limits the Court's opinion to possession of firearms by law-abiding and qualified individuals, it is not dicta” and that even “to the extent that this statement is [dicta], we shall still give it considerable weight.” 598 F.3d at 771, n.6.; see Peterson v. BMI Refractories, 124 F.3d 1386, 1392 n.4 (11th Cir. 1997) (noting that “dicta from the Supreme Court is not something to be lightly cast aside”).

Second Defendant contends Bruen has abrogated Rozier, and this Court is now precedent-bound to reconsider the constitutionality of the felon-in-possession statute by applying Bruen and analyzing the history of firearms regulations aimed at convicted felons. This too is unavailing. Rozier's post-Heller determination of § 922(g)(1)'s constitutionality binds this Court absent some convincing indication that its precedential impact has been extinguished, through subsequent direction from the Supreme Court (or the Eleventh Circuit en banc) either expressly overruling Rozier or undermining it to the point of abrogation. In re...