United States v. Wigfall

677 F.Supp.3d 791

UNITED STATES of America, Plaintiff, v. Keith WIGFALL, Defendant.

CAUSE NO. 3:21cr11 DRL

United States District Court, N.D. Indiana, South Bend Division

Signed June 15, 2023

Molly E. Donnelly, Frank E. Schaffer, Government Attorneys, U.S. Attorney's Office, South Bend, IN, for Plaintiff.

Scott J. Frankel, Public Defender, Federal Community Defenders Inc., South Bend, IN, Chad Pennington, Public Defender, Federal Community Defenders Inc., Hammond, IN, for Defendant.

OPINION AND ORDER

Damon R. Leichty, Judge

Keith Wigfall pleaded guilty to possessing with the intent to distribute 500 grams or more of a methamphetamine mixture. See 21 U.S.C. § 841(a). He objects to the presentence report. Aside from other objections that will await sentencing, he says the two-level guideline enhancement for possessing a firearm violates the Second Amendment, particularly in light of the recent 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). It doesn't, so the court overrules this objection.

In 2021, law enforcement found fentanyl, cocaine base, and large amounts of cash in Mr. Wigfall's car, and later methamphetamine, fentanyl, marijuana, more cash, and tools of the drug trade in his home. Officers also discovered three loaded firearms in the home—one that had been reported stolen. The presentence report recommends a two-level enhancement because a dangerous weapon (a firearm) was possessed. U.S.S.G. § 2D1.1(b)(1).

This enhancement "reflects the increased danger of violence when drug traffickers possess weapons." U.S.S.G. § 2D1.1 app. n.11. It applies when a dangerous weapon is possessed, "unless it is clearly improbable that the weapon was connected with the offense." Id.; see, e.g., United States v. Harris, 230 F.3d 1054, 1057 (7th Cir. 2000). The government must demonstrate that Mr. Wigfall possessed the firearm—actually or constructively—then he must prove that it was clearly improbable that the firearm was used in connection with the drug offense. See United States v. Cooper, 767 F.3d 721, 732 (7th Cir. 2014); Harris, 230 F.3d at 1057. Mr. Wigfall argues the facial unconstitutionality of this enhancement and the commentary's imposition of a burden on him at step two.

A facial challenge presupposes that "no application of the [guideline] could be constitutional." Sabri v. United States, 541 U.S. 600, 609, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004). The government argues that Mr. Wigfall's facial challenge stumbles at the start because there are instances when this enhancement can be applied without a firearm and thus without implicating his Second Amendment concern. The enhancement applies to a "dangerous weapon"—not just a firearm. U.S.S.G. § 2D1.1(b)(1). A dangerous weapon means "an instrument capable of inflicting death or serious bodily injury," or an object closely resembling such an instrument or used in a manner to create the impression that it is such an instrument. U.S.S.G. § 1B1.1 app. n.1(E).

For instance, a drug trafficker could receive this enhancement if he carried a dagger as part of his dealing, see United States v. Robtoy, 848 F. Appx. 53, 54 (2d Cir. 2021), or a crossbow, see United States v. Meadows, 756 F. Appx. 631, 632 (7th Cir. 2019), or a box represented as a bomb, see United States v. Hart, 226 F.3d 602, 608 (7th Cir. 2000), or a box cutter, see United States v. Commanche, 421 F. Appx. 868, 869 (10th Cir. 2011), so long as the item qualified as a dangerous weapon or objectively created the impression of being one, see United States v. Stitman, 472 F.3d 983, 988 (7th Cir. 2007). The government contends that Mr. Wigfall cannot show the guideline would be unconstitutional in all respects, and that much is true.

A facial challenge traditionally has been described as "the most difficult challenge to mount successfully" because "the challenger must establish that no set of circumstances exists under which the [law] would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Seeing this issue, Mr. Wigfall pivots slightly and refines his argument as a vagueness challenge, noting that he need not show the law in question to be vague in all its applications, not since Johnson v. United States, 576 U.S. 591, 602-03, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). And Johnson put this idea to rest to Mr. Wigfall's credit. See United States v. Cook, 914 F.3d 545, 553 (7th Cir. 2019), vacated on other grounds, — U.S. —, 140 S. Ct. 41, 205 L.Ed.2d 4 (2019).

But his advance runs headlong then into a different roadblock—he cannot constitutionally raise a vagueness challenge to an advisory sentencing guideline. See Beckles v. United States, 580 U.S. 256, 262, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017). The due process clause will invalidate two kinds of criminal laws as unconstitutionally vague: "laws that define criminal offenses and laws that fix the permissible sentences for criminal offenses." Id. The sentencing guidelines offer advice but never fix the permissible range of sentences. See id. at 263, 137 S.Ct. 886. "To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range." Id.; see also Gall v. United States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The guidelines neither "regulate the public by prohibiting any conduct" nor establish "minimum or maximum penalties for [any] crime." Beckles, 580 U.S. at 266, 137 S.Ct. 886 (quoting in part Mistretta v. United States, 488 U.S. 361, 396, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989)). Whether another constitutional challenge may be tenable against the guidelines, this isn't one.

The court also must overrule the objection under Bruen. The first step is textual—whether the Second Amendment's plain text covers a person's conduct such that the Constitution presumptively protects it. See Bruen, 142 S. Ct. at 2126. The second step is historical—whether the government can justify its regulation consistent with our Nation's historical tradition of firearm regulation. See id. This step ensures that the regulation fits within the same historical context that lends meaning to the Second Amendment right to bear arms in the first place. See Dist. of Columbia v. Heller, 554 U.S. 570, 592, 620-25, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008); see also Bruen, 142 S. Ct. at 2127 ("government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms").

There is nothing truly new in Bruen. The text and its historical tradition are proven wayfinders to constitutional meaning, and nothing new. Bruen follows this very same convention from Heller and McDonald. See Bruen, 142 S. Ct. at 2128-29 ("Heller's methodology centered on constitutional text and history"); Heller, 554 U.S. at 595, 128 S.Ct. 2783 ("on the basis of both text and history, [ ] the Second Amendment conferred an individual right to keep and bear arms"); see also id. at 576, 592, 128 S.Ct. 2783 (repeating same); McDonald v. City of Chi., 561 U.S. 742, 767, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (majority opinion) (examining text and history); id. at 785, 130 S.Ct. 3020 (plurality opinion) (noting that "judicial interest balancing" has been "expressly rejected"). And this convention emerges from an age-long tradition of interpretation. Nothing in Bruen changed Heller; one fortified the other. Only the rebirth of arguments is seemingly new, and the added scrutiny these arguments today give to firearm regulations.¹

The Second Amendment plainly confers "an individual right to keep and bear arms." Heller, 554 U.S. at 595, 128 S.Ct. 2783. "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. The text covers the same conduct that this sentencing guideline covers—possession of a firearm. The government and defendant present competing arguments whether the guideline is really a firearm regulation and whether Mr. Wigfall must be a law-abiding citizen to fall within the Second Amendment's protections. The court need not reach these issues today. See also Range v. AG United States, 69 F.4th 96, 101 (3rd Cir. 2023) (en banc) (rejecting government's argument that "the people" includes only law-abiding citizens). The court will assume the Second Amendment applies and proceed directly to the historical analysis—a not uncommon practice. See, e.g., White v. Illinois State Police, 15 F.4th 801, 811 (7th Cir. 2021).

Historical study presents a clear answer. There is nothing novel about enhancing a sentence because a defendant possessed a firearm in the commission of a felony, much less in the guidelines recommending such an enhanced sentence. This has nothing to do with the person's status for constitutional analysis but the means by which he perpetrated the crime. The Second Amendment does not give anyone the right to be armed while engaging in a felony or to have a firearm nearby to protect his drug stash or embolden his enterprise. "[T]here is no constitutional problem with separating guns from drugs." United States v. Jackson, 555 F.3d 635, 636 (7th Cir. 2009).

Crimes historically have been subject to enhanced sentences because they were committed with firearms—true both just before and contemporaneous to the Second Amendment's ratification in 1791. In 1783, for instance, Connecticut punished robbery one way but punished an offender who committed this same crime with a firearm with death. See An Act for the Punishment of Burglary and Robbery, 1783 Conn. Pub. Acts 633 (see Figure 1). This fifth state of the original thirteen to ratify the Constitution long Image materials not available for display.

Figure 1

State of Connecticut Acts and Laws (1783)

distinguished between common law robbery and armed robbery in measure of punishment. See State v. Reed...