UNITED STATES v. SANDERS (2023)

MEMORANDUM & ORDER

Defendant Reginald Sanders (“Defendant” or “Mr. Sanders”) is charged with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (See ECF No. 9, “Indictment”.) He has moved to dismiss the Indictment on the grounds that 18 U.S.C. § 922(g)(1) is unconstitutional. (See ECF No. 25, Defendant's Motion to Dismiss Indictment (“Mot.”).) For the reasons set forth below, the Court denies Defendant's motion.

BACKGROUND

I. Factual Background

On October 25, 2012, Mr. Sanders pleaded guilty in Queens County Supreme Court to one count of Robbery in the First Degree, in violation of New York State Penal Law § 160.15(4), a Class B Felony. (Mot. at 2.¹ ) Mr. Sanders was sentenced thereafter to five years of incarceration and thirty months of post-release supervision. (Mot. at 3.) Mr. Sanders’ prior conviction makes it a federal crime for him to “possess in or affecting commerce, any firearm or ammunition.” See 18 U.S.C. § 922(g)(1).²

On January 25, 2023, Mr. Sanders was stopped by officers of the New York City Police Department (“NYPD”) while driving a vehicle in Brooklyn, New York. (Mot. at 4.) According to the sworn statement of United States Postal Inspector, Monique Bramble, the vehicle that Mr. Sanders was observed driving did not reflect a visible registration sticker or front license plate and appeared to have a black cover obscuring the rear license plate. (ECF No. 1, “Complaint” ¶ 4.) Mr. Sanders’ vehicle also matched the appearance of a vehicle depicted in video footage surveillance that was used by the perpetrator of a robbery on January 24, 2023 to flee the scene of the robbery after demanding and confiscating a United States Postal Service mail carrier's “arrow keys” at gun point. (Complaint ¶ 2-3.) At the time that Mr. Sanders was pulled over a day later, on January 25, 2023, he was informed that his license plate appeared to have a cover over it and was asked to step out of his vehicle. (Mot. at 4-5.) Mr. Sanders obliged and informed the NYPD officers that he was in possession of a weapon and “reveal[ed] a gun tucked inside his waistband[,]” which the officers then removed from Mr. Sanders’ waistband. (Mot. at 5.) The NYPD officers identified Mr. Sanders’ weapon as a 9 mm Ruger semi-automatic pistol and Mr. Sanders was subsequently charged with possessing a weapon as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Id.) At the time the NYPD officers recovered Mr. Sanders’ weapon from his waistband, the pistol was loaded with “one cartridge in the chamber and 14 additional cartridges in the magazine.” (Complaint ¶ 4.) The firearm was later found to have been reported stolen. (Complaint ¶ 5.)

II. Procedural Background

Mr. Sanders was charged in a January 26, 2023 federal criminal Complaint with possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1), and was arraigned on the same day. (See generally Complaint; Minute Entry for Criminal Proceeding dated January 26, 2023.) Mr. Sanders pleaded not guilty and was released upon bond in the amount of $100,000. (ECF No. 2, Order Setting Conditions of Release). Mr. Sanders was later indicted by a grand jury sitting in the Eastern District of New York and charged with knowingly and intentionally possessing a firearm while knowing that he had previously been convicted in a court of one or more crimes punishable by a term of imprisonment exceeding one year, in violation of 18 U.S.C. § 922(g)(1). (Indictment.) On November 13, 2023, Mr. Sanders filed the instant motion.

LEGAL STANDARDS

A party may raise by pre-trial motion any “defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). One such motion is a pre-trial motion alleging a “defect in the indictment” Fed. R. Crim. P. 12(b)(3)(B), on the basis of a constitutional challenge to the charging statute. United States v. Louper-Morris, 672 F.3d 539, 562 (8th Cir. 2012) (“Typically, constitutional challenges to the charging statute can be raised during pretrial motions, specifically, in a motion to dismiss the indictment.”).

DISCUSSION

Mr. Sanders asks that this Court dismiss the Indictment on the grounds that the charging statute, 18 U.S.C. § 922(g)(1), violates the Second Amendment of the United States Constitution, both on its face and as applied to him. (Mot. at 2.) Second Circuit precedents bind this Court, including the Second Circuit's decision in United States v. Bogle, 717 F.3d 281, 281–82 (2d Cir. 2013) (per curiam), holding that “§ 922(g)(1) is a constitutional restriction on the Second Amendment rights of convicted felons.” Nevertheless, Mr. Sanders argues that the United States Supreme Court's 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) “invalidated the prior framework for adjudicating Second Amendment challenges that the Second Circuit and other courts had used.”³ (Mot. at 7.) The Government argues that Bruen did not disturb Second Circuit precedent upholding the constitutionality of 18 U.S.C. § 922(g). (ECF No. 27, “Opp.” at 7-15.) For the reasons set forth below, the Court agrees with the Government that 18 U.S.C. § 922(g)(1) is constitutional under controlling precedent.

Where the Second Circuit has “spoken directly to the issue presented,” this Court must follow its decision unless it is “overruled in a precedential opinion by the Second Circuit itself,” or later Supreme Court precedent “so undermines it that it will almost inevitably be overruled by the Second Circuit.” United States v. Smith, 489 F. Supp. 3d 167, 172–73 (E.D.N.Y. 2020) (quoting United States v. Diaz, 122 F. Supp. 3d 165, 179 (S.D.N.Y. 2015)). Here, the Second Circuit in Bogle spoke directly to the issue presented in Mr. Sanders's motion, see 717 F.3d at 281–82, and no Second Circuit precedent has since overruled Bogle. Thus, Mr. Sanders's motion to dismiss the indictment may be granted only if Bruen so undermined Bogle that the Second Circuit will almost inevitably overrule it.⁴

The Court is not convinced that Bruen will almost inevitably prompt the Second Circuit to overrule Bogle. In District of Columbia v. Heller, 554 U.S. 570, 626, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the foundational case recognizing an individual Second Amendment right to gun ownership, the Supreme Court explained that “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons[.]” The Supreme Court's next major Second Amendment case, McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), reaffirmed its statement in Heller. See McDonald, 561 U.S. at 786, 130 S.Ct. 3020 (“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons ․’ ”) (quoting Heller, 554 U.S. at 626, 128 S.Ct. 2783). Mr. Sanders dismisses the Supreme Court's statements as dicta (Mot. at 21), but “the Second Circuit [in Bogle] has turned what [Mr. Sanders] characterizes as ‘dicta’ in Heller and McDonald into binding precedent.” United States v. Hampton, No. 1:21-cr-766 (JPC), ––– F.Supp.3d ––––, ––––, 2023 WL 3934546, at *12 (S.D.N.Y. June 9, 2023).

Bruen abrogated Second Circuit precedent regarding firearm licensing, but it did not abrogate precedent regarding restrictions on felons in possession of firearms. See United States v. Baker, No. 6:23-cr-6087 (CJS), 2023 WL 5511343, at *3 n.3 (W.D.N.Y. July 12, 2023). In invalidating a component of New York's firearm licensing statute, Bruen abrogated Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012), an earlier Second Circuit case that upheld the New York law as constitutional by applying intermediate scrutiny. Bruen, 597 U.S. at 19, 142 S.Ct. 2111. The Supreme Court in Bruen faulted the Second Circuit's decision in Kachalsky for relying on a means-ends analysis that it deemed “inconsistent with Heller’s historical approach” to resolving Second Amendment cases. Id. at 19-24, 142 S.Ct. 2111.

Bogle, by contrast, did not rely on a means-ends analysis to uphold 18 U.S.C. § 922(g)(1). Instead, the Second Circuit in Bogle relied on the language in Heller itself, which applied a strictly history-based analysis and, in doing so, explicitly cautioned that its reasoning should not “be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” See 717 F.3d at 281 (quoting Heller, 554 U.S. at 626, 128 S.Ct. 2783). If anything, Bruen suggested that the Second Circuit was correct in relying on language in Heller and McDonald regarding the possession of firearms by convicted felons. See 597 U.S. at 72, 142 S.Ct. 2111 (Alito, J., concurring) (expressing belief that the majority opinion had not “disturbed anything” in Heller or McDonald “about restrictions that may be imposed on the possession or carrying of guns” by convicted felons); id. at 81, 142 S.Ct. 2111 (Kavanaugh, J., joined by Roberts, C.J., concurring) (writing separately to suggest Heller’s language regarding “possession of firearms by felons” remains valid); id. at 129, 142 S.Ct. 2111 (Breyer, J., joined by Sotomayor and Kagan, JJ., dissenting) (understanding majority opinion “to cast no doubt on” Heller’s statement about felon possession).

“Because Bogle is undisturbed, the Court need not analyze the nation's history of regulation of firearms with respect to convicted felons.” United States v. Alston, No. 1:22-cr-178 (ENV), 2023 WL 6977055, at *3 n.4 (E.D.N.Y. Oct. 23, 2023); see also United States v. Tribble, No. 2:22-cr-085 (PPS), 2023 WL 2455978, at *2 (N.D. Ind. Mar. 10, 2023) (“As tempting as it is to pore over colonial era gun laws and muse on whether they are an adequate proxy to § 922(g)(1), in this case doing so would take the analysis a step too far.”). If the Court lacked directly relevant Second Circuit precedent, that historical deep dive might be necessary; however, such an undertaking is unnecessary to conclude that the Second Circuit is not almost inevitably likely to overrule existing precedent.⁵ Equally worthy jurists have disagreed about the historical record's implications for 18 U.S.C. § 922(g)(1). Compare, e.g., Range v. Attorney General United States of America, 69 F.4th 96, 101–06 (3d Cir. 2023) (en banc) (examining various founding-era statutes to conclude that 18 U.S.C. § 922(g)(1) lacked sufficient historical support as applied to appellant) with Range, 69 F.4th at 119–28 (Krause, J., dissenting) (examining those and other historical sources to reach opposite conclusion). Given such widely conflicting views about which historical sources are relevant and what to make of those centuries-old sources with respect to 18 U.S.C. § 922(g)(1), this Court, which “do[es] not have historians on staff,” see United States v. Bullock, No. 18-cr-165 (CWR), 2023 WL 4232309, at *4 (S.D. Miss. June 28, 2023), has no reason to believe that the Second Circuit almost certainly would side with those who have found constitutional defects in that statute.

Finally, even assuming Bogle were abrogated to the extent that defendants could now bring as-applied challenges to 18 U.S.C. § 922(g)(1), Mr. Sanders's argument would fail on its own terms. Citing Range, among other cases, Mr. Sanders argues that for purposes of the Second Amendment, “people with felony convictions do not lose their status as ‘people’ under the Constitution.” (Mot. at 14.) This Court notes that Range was a “narrow” ruling that sustained an as-applied challenge to 18 U.S.C. § 922(g)(1) due to the non-violent nature of the defendant's prior convictions. See 69 F.4th at 106. As Mr. Sanders concedes, his prior conviction is for robbery in the first degree. (Mot. at 2.) Mr. Sanders’ prior conviction involved the display of what appeared to be a firearm while forcibly stealing property. (Opp. at 3.) The assertion that “financial hardship” allegedly motivated Mr. Sanders's past criminal conduct (Mot. at 30), neither excuses the fact that he endangered the lives of others, nor does it make his criminal history any less violent. Accordingly, Range’s reasoning does not assist Mr. Sanders, regardless of the age of his conviction or the motivation for his conduct. See United States v. Whyte, No. 21-cr-390 (JMA), 2023 WL 8096926, at *14 (E.D.N.Y. Nov. 21, 2023) (rejecting as-applied challenge because defendant's prior convictions included “two serious, violent felonies ․ whereas Range involved a food stamp fraudster who pleaded guilty to a state law misdemeanor”).⁶ Whether Mr. Sanders frames his challenge as a facial or as-applied challenge, there is no basis to dismiss the Indictment.

CONCLUSION

For the reasons set forth above, the Court denies Mr. Sanders's motion to dismiss the Indictment. The parties are ordered to confer and advise the Court how they intend to proceed by December 29, 2023.

SO ORDERED.

FOOTNOTES

1.   All pin citations to the record refer to the page number assigned by the Court's CM/ECF system.

2.   18 U.S.C. § 922(g)(1) applies to “any person ․ who has been convicted in any court of ․ a crime punishable by imprisonment for a term exceeding one year.” The term “crime punishable by imprisonment for a term exceeding one year” does not include “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” 18 U.S.C. § 921(a)(20)(B). Mr. Sanders does not qualify for the misdemeanor exception because New York classifies his prior conviction as a felony, and because the felony is punishable by a term of imprisonment greater than two years. See N.Y. Penal Law § 160.15.

3.   Bruen invalidated a component of New York's state firearm licensing scheme on Second Amendment grounds. See 597 U.S. at 8–11, 142 S.Ct. 2111. Bruen did not invalidate or address the constitutionality of any federal laws, however. See generally id.

4.   The Second Circuit heard oral argument on May 5, 2023, in an appeal raising an as-applied challenge to 18 U.S.C. § 922(g)(1) like the one Mr. Sanders raises here. See Br. for Pl.-Appellant, Zherka v. Garland, No. 22–1108 (2d Cir. Nov. 9, 2022), ECF No. 67. The decision in that case (or another pending Second Circuit case involving the same issue) may conclusively resolve similar challenges in future cases.

5.   For completeness, however, the Court notes that other courts in the Second Circuit that have undertaken that analysis have upheld 18 U.S.C. § 922(g)(1) as constitutional facially and as applied. Alston, 2023 WL 6977055, at *3 n.4; see, e.g., United States v. Mitchell, No. 1:23-cr-198(ALC), 2023 WL 8006344, at *4–7 (S.D.N.Y. Nov. 17, 2023); United States v. Ford, No. 1:23-cr-107(LGS), 2023 WL 7131742, at *3 (S.D.N.Y. Oct. 30, 2023); United States v. Abreu, No. 7:23-cr-67(NSR), 2023 WL 6541302, at *3–4 (S.D.N.Y. Oct. 6, 2023); United States v. Davila, No. 1:23-cr-292(JSR), ––– F.Supp.3d ––––, –––– – ––––, 2023 WL 5361799, at *2–5 (S.D.N.Y. Aug. 22, 2023); United States v. Lane, No. 5:22-cr-132(GWC), 2023 WL 5614798, at *3–7 (D. Vt. Aug. 24, 2023); United States v. Rowson, 652 F. Supp. 3d 436, 457–72 (S.D.N.Y. 2023); Campiti v. Garland, 649 F. Supp. 3d 1, 5–8 (D. Conn. 2023). Mr. Sanders cites a lone district court case from the Northern District of Illinois, which found 18 U.S.C. § 922(g)(1) facially unconstitutional after conducting a historical analysis that resulted in a different outcome from courts in this Circuit. See United States v. Prince, No. 1:22-cr-240 (RWG), 2023 WL 7220127 (N.D. Ill. Nov. 2, 2023). This Court is not persuaded that the “outlier” analysis in Prince warrants a rejection of the historical analysis undertaken by numerous courts in this Circuit to uphold the constitutionality of 18 U.S.C. § 922(g)(1) both facially and as applied. See United States v. Drake, No. 1:23-cr-21 (HAB), 2023 WL 8004876, at *6 (N.D. Ind. Nov. 16, 2023).

6.   Mr. Sanders also cites United States v. Harper, No. 1:21-cr-236 (JPW), 2023 WL 5672311 (M.D. Pa. Sep. 1, 2023) in an attempt to extend the reasoning in Range to circumstances where a defendant has a predicate felony conviction for robbery. In Harper (now on appeal), the court found that the Government had not met its burden of demonstrating that restricting convicted drug traffickers from possessing firearms is consistent with the nation's historical tradition of disarming individuals found to be dangerous. Putting aside the fact that the court's analysis in Harper focuses on drug trafficking rather than robbery, this Court, as many others have before it, finds Harper unpersuasive, see United States v. Hawkes, No. 22-cr-111 (GBW), 2023 WL 8433758, at *6 n.5 (D. Del. Dec. 5, 2023) (collecting cases), particularly in light of numerous decisions within this Circuit rejecting the argument that “922(g)(1) [is] unconstitutional as applied to an individual with a prior nonviolent felony,” much less an individual with a prior violent felony. See Whyte, 2023 WL 8096926, at *14 (rejecting as-applied challenge where “[the defendant's] prior felony convictions include two serious, violent felonies ․ [as opposed to] Range[,] [which] involved a food stamp fraudster who pleaded guilty to a state law misdemeanor.”).

KIYO A. MATSUMOTO, United States District Judge: