Opinion
5-22-CR-00109-OLG
04-02-2024
United States of America, v. Florentino Longoria II, Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Orlando Garcia:
This Report and Recommendation concerns Defendant Florentino Longoria II's Motion to Dismiss the Indictment. See Dkt. Nos. 36 (Mot.), 39 (Gov't Response). The motion challenges the facial and as-applied constitutionality of the federal felon-in-possession statute, codified at 18 U.S.C. § 922(g)(1), in light of the Supreme Court's decision in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S.Ct. 2111 (2022). The motion also raises for error-preservation purposes facial and as-applied challenges to § 922(g)(1) on Commerce Clause grounds, which Longoria acknowledges are foreclosed by precedent. See Mot. at 30-31.
The Commerce Clause arguments require no resolution of disputed facts and, as Longoria acknowledges, are foreclosed by binding Fifth Circuit precedent. See Mot. at 31 & n.12 (collecting cases); see also United States v. Perryman, 965 F.3d 424, 426 (5th Cir. 2020) (foreclosing an as-applied challenge to § 922(g)(1)); United States v. Alcantar, 733 F.3d 143, 145 (5th Cir. 2013) (upholding § 922(g)(1) against facial Commerce Clause challenge); United States v. Rawls, 85 F.3d 240, 242-43 (5th Cir. 1996) (same and noting the existence of a jurisdictional element suffices to uphold the statute). Further, for the reasons discussed below, the Second Amendment challenge to § 922(g)(1) fails.
Defendant's Motion to Dismiss, Dkt. No. 36, should be DENIED in all respects.
Background
On December 2, 2021, officers found a 9mm handgun inside Defendant Longoria's 2003 Chevy Silverado, following a traffic stop for defective brake and signal lights. See Mot. at 24. As Longoria's motion explains, the grand jury on March 2, 2022, indicted him on a single count of unlawfully and knowingly possessing a firearm in connection with that stop. Longoria does not contest, for purposes of his motion, his status as a convicted felon or his knowledge of that fact. According to the Government's response, Longoria “is a convicted felon and documented gang member who was previously convicted of Aggravated Assault with a Deadly Weapon, Conspiracy to Distribute a Controlled Substance, and Possession with Intent to Distribute a Controlled Substance.” Resp. at 1.
Analysis
With the Commerce Clause challenges to § 922(g)(1) having already been addressed above, left for discussion are the Second Amendment facial challenge under Bruen as well as Longoria's as-applied challenge. As for Longoria's as-applied challenge, he points to no binding decision requiring a decision in his favor, as a felon convicted of at least one violent offense (and two controlled substance offenses) found in possession of a firearm. Cf., e.g., United States v. Barber, No. 4:20-CR-384-SDJ, 2023 WL 1073667, at *4 (E.D. Tex. Jan. 27, 2023) (“Section 922(g)(1), at a minimum, operates constitutionally under Bruen as applied to dangerous felons.”). His as-applied challenge therefore fails, for all the reasons articulated in the Government's Response. See Resp. at 22-23. As to the facial challenge, Section 922(g)(1) has faced many Second Amendment facial challenges, like Longoria's, in Bruen's wake. Virtually every such facial challenge-if not every single such challenge-in this circuit has resulted in a district court decision upholding the statute on its face. But see United States v. Bullock, F.Supp.3d___, 2023 WL 4232309, at *2 (S.D.Miss. June 28, 2023) (holding § 922(g)(1) unconstitutional as applied to Defendant). And before the Supreme Court decided Bruen, and both before and after it decided Bruen's predecessor District of Columbia v. Heller, 554 U.S. 570 (2008), the Fifth Circuit repeatedly upheld § 922(g)(1) under the Second Amendment.
E.g., United States v. Thompson, 670 F.Supp.3d 381, 386-87 (E.D. La. 2023) (“Bruen did not disturb binding Fifth Circuit precedent regarding the constitutionality of 18 U.S.C. § 922(g)(1), and, even if it did, this Court lacks the authority to overturn those decisions on its own.”); United States v. Schnur,___F.Supp.3d___2023 WL 4881383 at *3 (S.D.Miss. July 31, 2023) (“The Court is convinced that it remains guided by the Fifth Circuit's treatment of section 922(g)(1). The Court cannot ignore preBruen Fifth Circuit precedent on the constitutionality of section 922(g)(1) absent a Fifth Circuit or Supreme Court decision reaching the issue.”); United States v. Mason, No. 3:23-cr-36-P, 2023 WL 2589395, at *2 (N.D. Tex. Mar. 21, 2023) (noting, “this Court is bound by Fifth Circuit precedent and is not free to overturn the Fifth Circuit's preBruen decisions upholding Section 922(g)(1)” (quotation marks omitted)); United States v. Jordan, No. EP-22-CR-01140-DCG-1, 2023 WL 157789, at *7 (W.D. Tex. Jan. 11, 2023) (“[T]he Court need not-and in fact cannot-decide whether Bruen abrogates the preBruen Fifth Circuit cases upholding Section 922(g)(1) .... District Courts have no power to declare that an intervening. Supreme Court case inters an otherwise-binding Fifth Circuit case.” (quotations omitted)); United States v. Connelly, No. 3:22-CR-229(2), 2022 WL 17829158, at *3 (W.D. Tex. Dec. 21, 2022) (“[T]his Court may not determine whether or how Bruen has changed Fifth Circuit precedents interpreting § 922; that question must be settled by the Fifth Circuit itself.”); United States v. Grinage, No. 5:21-CR-00399-JKP, 2022 WL 17420390, at *8 (W.D. Tex. Dec. 5, 2022) (“[T]he Bruen decision does not constitute an intervening change in law which renders § 922(g)(1) unconstitutional either facially or as applied ....”); United States v. Gladem, SA: 20-CR-00269-XR, Dkt. No. 57 (“Felons are not covered under the plain text of the Second Amendment, which affords protection only to the political community. Even if they were covered, felon-in-possession statutes are within our historical tradition of firearm regulation.”); United States v. Harris, SA: 21-CR-00328-XR, Docket No. 59 (“The Supreme Court's opinion in Bruen did not reverse or question its earlier writings in Heller on the permissible limitations that could be imposed on the Second Amendment.”); United States v. Collette, No. MO:22-CR00141-DC, 2022 WL 4476790, at *7 (W.D. Tex. Sept. 25, 2022) (“[T]his Nation has a historical tradition of excluding felons and those who abuse their rights to commit violence from the rights and powers of ‘the people.' Consistent with Heller's definition, if groups have been categorically excluded under other constitutional provisions bestowing rights to ‘the people,' logic demands that society could also exclude those groups from under the Second Amendment.”).
E.g., United States v. Massey, 849 F.3d 262, 265 (5th Cir. 2017); United States v. Scroggins, 599 F.3d 433, 451 (5th Cir. 2010); United States v. Everist, 368 F.3d 517, 519 (5th Cir. 2004).
But after Bruen, the Fifth Circuit in United States v. Rahimi struck down the firearm regulation codified at 18 U.S.C. § 922(g)(8), which criminalized the knowing possession of a firearm by a person subject to a domestic-violence restraining order. 61 F.4th 443 (5th Cir. 2023), cert. granted, No. 22-915, 2023 WL 4278450 (U.S. June 30, 2023); see also United States v. Daniels, 77 F.4th 337, 355 (5th Cir. 2023) (striking down § 922(g)(3) as applied to the defendant). In doing so, the Rahimi panel relied on the Government's concession that Bruen amounts to “an intervening Supreme Court decision [that] fundamentally changes the focus of the relevant analysis.” Id. at 450. This concession was made, apparently, without any meaningful analysis of Fifth Circuit Second Amendment jurisprudence, including a significant body of which appears quite viable post-Bruen. See United States v. Turner, No. 5:21-CR-00494-OLG, Dkt. No. 75 (Am. Report and Recommendation) (discussing Fifth Circuit precedent potentially applicable to § 922(n) post-Bruen). Utilizing this concession from the Government, and without independently exploring the relevance of pre-Bruen Fifth Circuit Second Amendment precedent post-Bruen, the Rahimi panel declined to follow pre-Bruen precedent that affirmed § 922(g)(8), reasoning instead that:
To the extent that the [Supreme] Court [in Bruen] did not overtly overrule Emerson and McGinnis [pre-Bruen Fifth Circuit decisions that upheld § 922(g)(8)]-[Bruen] did not cite those cases but discussed other circuits' similar precedent-Bruen clearly fundamentally changed our analysis of laws that implicate the Second Amendment, rendering our prior precedent obsolete.Rahimi, 61 F.4th at 450-51 (internal quotation marks, brackets and citation removed). The Fifth Circuit has not squarely evaluated the continuing facial validity of § 922(g)(1) in light of Bruen's holding or Rahimi's repudiation of some (or perhaps all) pre-Bruen Fifth Circuit Second Amendment jurisprudence.
The panel majority in Daniels, decided after Rahimi, likewise appears to have begun its analysis from the assumption that Bruen necessarily wiped the slate clean with regard to any and all preBruen Second Amendment precedent. True, Bruen undoubtedly articulated a refined Second Amendment test. But several preBruen holdings are largely if not fully consistent with Bruen and indeed even presaged Bruen's test. It is not apparent to this Court-no matter what Rahimi purports to announce about Bruen's reach-that those prior precedential holdings should be ignored without analysis by a lower court postBruen.
In a plain-error posture the Court noted in a nonprecedential decision issued postBruen and postRahimi that “there is no binding precedent explicitly holding that 922(g)(1) is unconstitutional on its face or as applied” and that “it is not clear that either Bruen or Rahimi dictate such a result.” United States v. Garza, No. 22-51021, 2023 WL 4044442, at *1 (5th Cir. June 15, 2023) (per curiam); see Rule and Internal Operating Procedure of the U.S. Court of Appeals for the Fifth Circuit 47.5.4 (addressing unpublished decisions).
Starting with Bruen itself, nothing in the Court's opinion authorizes this Court to depart from pre-Bruen Fifth Circuit decisions affirming § 922(g)(1) under the Second Amendment. This Court is of course bound by Fifth Circuit precedent. See St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 442 (5th Cir. 2000). And simply put, the Supreme Court in Bruen did not address § 922(g)(1)'s continuing validity. To the extent it might have done so implicitly, best indications are that Bruen contemplated § 922(g)(1) would remain valid. See Bruen, 142 S.Ct. at 2157 (Alito, J., concurring) (noting that nothing in Bruen, moreover, “disturbed anything that [the Court] said in Heller or McDonald . . . about restrictions that may be imposed on the possession or carrying of guns.”); id. at 2162 (Kavanaugh, J., concurring and joined by Roberts, C.J.) (quoting and affirming Heller's list of presumptively lawful regulations); id. at 2175 (Breyer, J., dissenting and joined by Sotomayor, J. and Kagan, J.). Several decisions from this Court noted Bruen's minimal effect on § 922(g)(1) on the way to upholding § 922(g)(1) post-Bruen.
See, e.g., United States v. Grinage, No. 5:21-CR-00399-JKP, 2022 WL 17420390, at *8 (W.D. Tex. Dec. 5, 2022) (“[T]he Bruen decision does not constitute an intervening change in law which renders § 922(g)(1) unconstitutional either facially or as applied ....”); Gladem, SA:20-CR-00269-XR, Dkt. No. 57 (“Felons are not covered under the plain text of the Second Amendment, which affords protection only to the political community. Even if they were covered, felon-in-possession statutes are within our historical tradition of firearm regulation.”); United States v. Harris, SA: 21-CR-00328-XR, Docket No. 59 (“The Supreme Court's opinion in Bruen did not reverse or question its earlier writings in Heller on the permissible limitations that could be imposed on the Second Amendment.”); Collette, No. MO:22-CR00141-DC, 2022 WL 4476790, at *7 (“[T]his Nation has a historical tradition of excluding felons and those who abuse their rights to commit violence from the rights and powers of ‘the people.' Consistent with Heller's definition, if groups have been categorically excluded under other constitutional provisions bestowing rights to ‘the people,' logic demands that society could also exclude those groups from under the Second Amendment.”).
Next is Rahimi and whether it accurately reasons that “Bruen clearly fundamentally changed our analysis of laws that implicate the Second Amendment, rendering our prior precedent obsolete,” such that pre-Bruen precedent on § 922(g)(1)-not just 922(g)(8)-is no longer binding. Rahimi, 61 F.4th at 450-51 (cleaned up as indicated supra). Every Fifth Circuit panel, including the Rahimi panel, is bound by the decisions handed down by previous panels, unless a prior panel decision has been superseded by an intervening decision from the en banc Fifth Circuit or the Supreme Court. See In re Bonvillian Marine Serv., Inc., 19 F.4th 787, 792 (5th Cir. 2021). Here, the pre-Bruen Fifth Circuit decisions affirming § 922(g)(1) bind this Court and subsequent Fifth Circuit panels, unless Bruen or an en banc decision says otherwise. As mentioned, Bruen is silent as to § 922(g)(1), and Rahimi is not an en banc decision.
Nor is this Court persuaded by efforts to invoke obiter dictum from Rahimi to conclude Bruen renders all Fifth Circuit § 922(g)(1) “prior precedent obsolete.” It is not for this Court to announce or find that Rahimi is the definitive statement on the continuing validity of all Fifth Circuit Second Amendment precedent. Any such statement, one would think, ought to come from the en banc Fifth Circuit or the Supreme Court. See Mason, No. 3:23-cr-36-P, 2023 WL 2589395, at *2 (“[T]his Court is bound by Fifth Circuit precedent and is not free to overturn the Fifth Circuit's pre-Bruen decisions upholding Section 922(g)(1)” (quotation marks omitted)); Jordan, No. EP-22-CR-01140-DCG-1, 2023 WL 157789, at *7 (same). At the very least, if such a sweeping pronouncement were to come from a lone Fifth Circuit panel one would hope the issue in its full extent were actually pressed and passed upon, which didn't happen in Rahimi. Cf. United States v. Schnur, No. 1:23-CR-65-LG-BWR-1, 2023 WL 4881383, at *3 (S.D.Miss. July 31, 2023) (“The Court cannot ignore pre-Bruen Fifth Circuit precedent on the constitutionality of section 922(g)(1) absent a Fifth Circuit or Supreme Court decision reaching the issue.”); United States v. Thompson, No. CR 22-173, 2023 WL 3159617, at *4 (E.D. La. Apr. 27, 2023) (“[T]he authority to determine whether the Fifth Circuit's pre-Bruen precedent regarding the constitutionality of § 922(g)(1) has been overturned by an intervening change in the law lies with the Fifth Circuit alone.”).
To be fair to the Rahimi opinion, it nowhere explicitly addresses the validity of all Fifth Circuit Second Amendment precedent; it is perhaps best read as wiping the precedential slate clean as to § 922(g)(8), which is the only statute and supporting body of law the opinion had reason to evaluate. And its efforts there, in any event, are the subject of a grant of a writ of certiorari. Recall as well that fundamental to the Rahimi panel's conclusion on the obsolescence of prior circuit § 922(g)(8) precedent was the Government's surprising concession that Bruen rendered prior Fifth Circuit jurisprudence inapposite. The Court doubts the Government in Rahimi conceded (or even was even capable of conceding) the obsolescence of every single precedent for every firearm restriction in the books, including the not-at-issue § 922(g)(1). Proving the point, even the Rahimi panel contemplated that § 922(g)(1) would survive the panel opinion's expansive reasoning. See Rahimi, 61 F.4th at 452 (“Rahimi was not a convicted felon or otherwise subject to another ‘longstanding prohibition[] on the possession of firearms' that would have excluded him.”). Simply put, because the Rahimi panel didn't purport to address and didn't have reason to address anything beyond precedent on § 922(g)(8), the Rahimi opinion shouldn't be read to have addressed anything beyond that § 922(g)(8) precedent.
Moreover, even if Rahimi confirmed for all future Fifth Circuit panels that no pre-Bruen Fifth Circuit decision remains binding, there is still ample reason to deny Defendant's motion. As numerous decisions reflect, Bruen itself signals that § 922(g)(1) survives the new Bruen test. Ironically, even Rahimi recognizes this fact:
E.g., United States v. Riley, No. 1:22-CR-163 (RDA), 2022 WL 7610264, at *10 (E.D. Va. Oct. 13, 2022) (noting “Bruen cautions it does not displace Heller,” citing concurring opinions, and relying on Heller's endorsement of longstanding regulations to uphold § 922(g)(1)); United States v. Carrero, No. 2:22-CR-00030, 2022 WL 9348792, at *4 (D. Utah Oct. 14, 2022) (same); United States v. Price, No. 2:22-CR-00097, 2022 WL 6968457, at *8 (S.D. W.Va. Oct. 12, 2022) (finding it unnecessary “to engage in the historical analysis test articulated in Bruen” as to § 922(g)(1) in light of Bruen reaffirming the Court's reasoning in Heller and McDonald).
[C]ontrary to calling 18 U.S.C. § 922(g)(1) into question, Rahimi recognizes, as did the Supreme Court in Heller and McDonald, that the history and tradition of the Second Amendment make clear that prohibiting convicted felons from possessing firearms is constitutionally tolerable. In short, the court in Rahimi had no occasion to address the constitutionality of § 922(g)(1), nor did it purport to do so.United States v. Thompson, No. CR 22-173, 2023 WL 3159617, at *4 (E.D. La. Apr. 27, 2023). Like other courts reaching a similar conclusion, this Court rejects Defendant's attempt to overturn § 922(g)(1) in light of Bruen's holding.
Conclusion
A conservative, measured approach is required by law and prudence when addressing Bruen's aftershocks. Because binding pre-Bruen Fifth Circuit precedent affirms the validity of § 922(g)(1) under the Second Amendment, and because no binding or persuasive authority requires or authorizes the Court to depart from that precedent, Defendant's motion should be DENIED. Moreover, even if pre-Bruen § 922(g)(1) Fifth Circuit precedent no longer applies, Bruen and other Supreme Court decisions reflect that Defendant's arguments fail.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59. The objecting party shall file the objections with the Clerk of the Court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.