United States v. Jeffrey

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

Defendant Timothy Jeffrey moves to dismiss the two Section 922(g)(1) felon-inpossession charges in his indictment (Case No. 24-00475) and corresponding Form 12 charges (Case No. 12-00216 and Case No. 16-00002). He argues that Section 922(g)(1) is unconstitutional as applied to him because, first, our circuit law affirming the constitutionality of Section 922(g)(1) was abrogated by New York State Rifle & Pistol Ass'n, Inc. v. Bruen, and second, Section 922(g)(1) fails the “history and tradition” test set out in Bruen.

The undersigned considered and denied a substantially similar argument in another Section 922(g)(1) prosecution, United States v. Aguilera. No. CR 23-00217 WHA, 2024 WL 4778044 (N.D. Cal. Nov. 12, 2024). Defendant's arguments fail for the same reasons. First, our circuit's precedent, United States v. Vongxay, is still controlling. 594 F.3d 1111 (9th Cir. 2010); Aguilera, 2024 WL 4778044, at *3-8. While there is some tension between Vongxay and Bruen, they are not “clearly irreconcilable.” Close v. Sotheby's, Inc., 894 F.3d 1061, 1074 (9th Cir. 2018) (“Nothing short of ‘clear irreconcilability' will do.”). Second, if Vongxay was not controlling, Section 922(g)(1)'s application to defendant would pass muster under Bruen given his six prior felony convictions, including felony taking of a vehicle without consent, receipt of stolen property, escape from federal custody, and conspiracy to distribute and possession with intent to distribute methamphetamine. See Aguilera, 2024 WL 4778044, at *8-14.

Following oral argument, the undersigned afforded defense counsel an opportunity to file a supplemental brief attempting to distinguish the present motion from Aguilera (Dkt. No. 26). As an initial matter, defendant does not challenge that order's holding that Vongxay - under which his motion must be denied - controls. As to Aguilera's subsequent application of the Bruen test, the arguments made do not move the needle.

First, defendant points out that “[i]n Aguilera, there appears to be at least an initial issue of whether the 2nd Amendment is applicable to non-citizens,” while here, defendant is “an American citizen by birth” (id. at 1). True, but Aguilera “assume[ed] (without deciding) that the Second Amendment extends to unlawful aliens.” Aguilera, 2024 WL 4778044, at *8. Defendant's distinction makes no difference.

Second, defendant argues that his convictions are “for non-violent offenses,” and not for burglaries, as was the case in Aguilera (Dkt. No. 26 at 2). Aguilera explained that “the historical precedents [therein] extended to all manner of crimes, not only ‘crimes of violence,'” because “[l]aws imposing capital punishment and estate forfeiture did not treat the degree of violence accompanying the underlying act as determinative of sentence severity.” Id. at 14. The notion, moreover, that defendant's felony conviction for conspiracy to possess methamphetamine with the intent to distribute is “non-violent” is incorrect: “Like burglary or robbery, drug trafficking plainly poses substantial risks of confrontation that can lead to immediate violence.” United States v. Alaniz, 69 F.4th 1124, 1130 (9th Cir. 2023). Even the since-vacated panel decision striking down Section 922(g)(1) as applied to a defendant convicted of vandalism conceded that drug traffickers could be disarmed. United States v. Duarte, 101 F.4th 657 (9th Cir.), reh'g en banc granted, opinion vacated, 108 F.4th 786 (9th Cir. 2024). Defendant's convictions are more than enough to bring him within the ambit of Aguilera's analysis.

Finally, the bulk of defendant's supplemental briefing takes issue with the methodology laid out in Bruen, arguing that “both Bruen, and its successor case, United States v. Rahimi . . . appear to be more results driven than based on actual historical precedent” (Dkt. No. 26 at 24). That argument misunderstands the role of the district courts and is not considered here. Hutto v. Davis, 454 U.S. 370, 375 (1982) (“[U]nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.”).

Defendant's motion is DENIED.

IT IS SO ORDERED.