United States v. Veasley

98 F.4th 906

UNITED STATES of America, Plaintiff - Appellee v. Devonte Antonio VEASLEY, Defendant - Appellant

No. 23-1114

United States Court of Appeals, Eighth Circuit

Submitted: November 2, 2023

Filed: April 17, 2024

Appeal from United States District Court for the Southern District of Iowa - Central

Counsel who presented argument on behalf of the appellant and appeared on the brief was Alexander David Smith, of Des Moines, IA. Counsel who presented argument on behalf of the appellee was Andrew H. Kahl, AUSA, of Des Moines, IA. The following attorney(s) appeared on the appellee brief; Amy L Jennings, AUSA, of Des Moines, IA.

Before GRUENDER, STRAS, and KOBES, Circuit Judges.

STRAS, Circuit Judge.

Devonte Veasley pleaded guilty to possessing a firearm—a federal offense for someone who is using or addicted to a controlled substance. See 18 U.S.C. § 922(g)(3). The question is whether criminalizing this conduct always violates the Second Amendment. The answer is no, so we reject Veasley's facial challenge to the statute.

I.

A drug deal went sideways when, rather than going through with it, Veasley pulled out a handgun and shot at his dealer. After the attack, the government charged him with possessing a firearm while "unlawful[ly] us[ing]" a "controlled substance." Id.

A month after he pleaded guilty, the Supreme Court decided New York State Rifle & Pistol Ass'n v. Bruen, which concluded that a New York law requiring "proper cause" to carry a firearm violated the Second Amendment. 597 U.S. 1, 12-13, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). It was inconsistent with "this Nation's historical tradition of firearm regulation." Id. at 17, 142 S.Ct. 2111.

Inspired by Bruen, Veasley asks us to reach the same conclusion about 18 U.S.C. § 922(g)(3), the federal drug-user-in-possession statute. He believes the district court¹ should have allowed him to withdraw his plea or dismissed the indictment. The court did neither, however, leaving him with only one option: challenging the facial constitutionality of the statute. See United States v. Nunez-Hernandez, 43 F.4th 857, 860 (8th Cir. 2022) (clarifying that a guilty plea does not foreclose "arguments that a criminal statute underlying a conviction is facially unconstitutional"); United States v. Seay, 620 F.3d 919, 922 n.3 (8th Cir. 2010) (explaining why a guilty plea forecloses an as-applied constitutional challenge). His facial challenge is now before us.

II.

Section 922(g)(3) prohibits anyone "who is an unlawful user of or addicted to any controlled substance" from possessing a "firearm or ammunition." 18 U.S.C. § 922(g)(3). The penalties for a violation can be heavy, up to 15 years in prison. See id. § 924(a)(8). Even more for career offenders. See id. § 924(e). Whether this scheme is constitutional is a legal question subject to de novo review. See Seay, 620 F.3d at 923; see also United States v. Sitladeen, 64 F.4th 978, 983 (8th Cir. 2023) (reviewing the denial of a motion to dismiss an indictment de novo); United States v. Seys, 27 F.4th 606, 610 (8th Cir. 2022) (reviewing the denial of a motion to withdraw a guilty plea for an abuse of discretion).

This is not the first time we have examined § 922(g)(3)'s constitutionality. We have, for example, entertained a Fifth Amendment void-for-vagueness challenge. The statute survived because of a "judicially[ ]created temporal nexus between the gun possession and regular drug use," United States v. Carnes, 22 F.4th 743, 748 (8th Cir. 2022) (citation omitted), but we left the door open for as-applied challenges, see, e.g., United States v. Turner, 842 F.3d 602, 604-05 (8th Cir. 2016).

Another set of challenges, like the one here, focuses on the Second Amendment. See, e.g., Seay, 620 F.3d at 922. A two-part test, based on "text and historical understanding," governs them. Bruen, 597 U.S. at 26, 142 S.Ct. 2111; see District of Columbia v. Heller, 554 U.S. 570, 576-78, 628-32, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Step one provides the textual threshold: does a law prohibit "conduct" that "the Second Amendment's plain text covers"? Bruen, 597 U.S. at 17, 142 S.Ct. 2111. Crossing that threshold leads to step two, "historical understanding": is "the regulation . . . consistent with this Nation's historical tradition of firearm regulation"? Id.; see Sitladeen, 64 F.4th at 985. If it is, then the statute "pass[es] constitutional muster." Bruen, 597 U.S. at 30, 142 S.Ct. 2111.

Constitutional challenges like these come in two varieties. The first is as-applied, which requires courts to examine a statute based on a defendant's individual circumstances. See United States v. Lehman, 8 F.4th 754, 757 (8th Cir. 2021). If a frail and elderly grandmother uses marijuana for a chronic medical condition a day before possessing a gun, for example, the constitutional analysis will consider only those circumstances, not what a different defendant might do.²

A facial challenge, the only type still available to Veasley, goes further. As the Supreme Court has explained, "[a] facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications," regardless of the individual circumstances. Bucklew v. Precythe, 587 U.S. 119, 138, 139 S.Ct. 1112, 203 L.Ed.2d 521 (2019) (emphasis added). The stakes are higher in a facial challenge, so the bar goes up as well: there must be, as Veasley acknowledges, "no set of circumstances . . . under which [§ 922(g)(3)] would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); see Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (noting that "a facial challenge must fail where the statute has a plainly legitimate sweep" (citation omitted)). If some applications are constitutional, then facially speaking, the statute is too. See, e.g., United States v. Stephens, 594 F.3d 1033, 1038 (8th Cir. 2010) (holding that a defendant's "facial challenge . . . fails because . . . . [o]ne can imagine many defendants [to] whom" the statute could constitutionally apply); Antonyuk v. Chiumento, 89 F.4th 271, 314 (2d Cir. 2023) (rejecting a facial Bruen challenge to a licensing scheme requiring good moral character because "[t]here are applications of the character provision that would be constitutional").

These differences have practical consequences. An as-applied challenge would focus only on Veasley: is applying "the regulation" to his conduct "[in]consistent with this Nation's historical tradition of firearm regulation"? Bruen, 597 U.S. at 17, 142 S.Ct. 2111. To counter a facial challenge, by contrast, all the government must do is identify constitutional applications—even if they are unrelated to Veasley's conduct—using the same text-and-historical-understanding framework. See id. at 33-34, 142 S.Ct. 2111; United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960) (cautioning courts not to "pronounc[e] an Act of Congress unconstitutional" when constitutional applications exist).

In effect, Veasley is speaking for a range of people. On its face, § 922(g)(3) applies to everyone from the frail and elderly grandmother to regular users of a drug like PCP, which can induce violence. See United States v. Daniels, 77 F.4th 337, 355 (5th Cir. 2023) (concluding that a marijuana user's § 922(g)(3) conviction was inconsistent with the history and tradition of firearms regulation); see also Mim J. Landry, Understanding Drugs of Abuse: The Processes of Addiction, Treatment, and Recovery 108 (1994) ("PCP toxicity may include combative hostility, paranoia, depersonalization, and violence . . . ."). In a prior case, we concluded that a facial challenge could not succeed. See Seay, 620 F.3d at 925. Bruen has supplemented the analysis, but it has not changed the answer. See Jackson, 69 F.4th at 501-06 (undertaking the historical analysis "endorsed by Bruen" rather than just relying on two post-Heller decisions, United States v. Adams, 914 F.3d 602, 607 (8th Cir. 2019) and United States v. Joos, 638 F.3d 581, 586 (8th Cir. 2011)); cf. Sitladeen, 64 F.4th at 985-87 (concluding that a pre-Bruen precedent only remained binding because it "did exactly" what "Bruen [now] tells us to" (emphasis added)).

III.

In this appeal, we assume that § 922(g)(3) "governs conduct that falls within the plain text of the Second Amendment." Sitladeen, 64 F.4th at 985; see U.S. Const. amend. II. That is, drug users "are part of 'the people' whom the Second Amendment protects," and "handguns are weapons 'in common use' today." Bruen, 597 U.S. at 31-32, 142 S.Ct. 2111. So "we proceed to ask whether [§ 922(g)(3)] fits within America's historical tradition of firearm regulation." Sitladeen, 64 F.4th at 985.

A.

It makes sense to start with the closest "historical analogue," Bruen, 597 U.S. at 30, 142 S.Ct. 2111, which is the regulation of intoxicating substances. Alcohol and drug abuse have been "general societal problem[s]," id. at 26, 142 S.Ct. 2111, for thousands of years. See Hanan Hamdi et al., Early Historical Report of Alcohol Hepatotoxicity in Minooye Kherad, a Pahlavi Manuscript in Ancient Persia, 6th Century CE, 13 Caspian J. Internal Med. 431, 431 (2022) ("[S]everal kinds of alcoholic beverages have been . . . abused by humans for thousands of years . . . . [A]rchaeological and historical evidence revealed that the fermentation of grains into beer . . . dated back about 20,000 years as an ancient custom." (Internal citations omitted)). Colonial times were no exception. See Bruen, 597 U.S. at 26, 142 S.Ct. 2111. Physician Benjamin Rush, a signer of the Declaration of Independence, recognized that alcohol can be so addictive that some drinkers "can afford scarcely any marks of remission either during the day or the night." Benjamin Rush, An Inquiry into the Effects of Ardent Spirits upon the Human Body and Mind 8 (8th ed., Boston, James Loring 1823); see Karl Mann et al., One Hundred Years of Alcoholism: The...