U.S. v. Vongxay

• Citation: 594 F.3d 1111
• Decision Date: 09 February 2010
• Docket Number: No. 09-10072.,09-10072.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peter VONGXAY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

594 F.3d 1111

UNITED STATES of America, Plaintiff-Appellee, v. Peter VONGXAY, Defendant-Appellant.

No. 09-10072.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 12, 2010.

Filed February 9, 2010.

Daniel J. Broderick, Federal Defender, and Douglas J. Beevers, Assistant Federal Defender, Fresno, CA, for defendant-appellant Peter Vongxay.

Lawrence G. Brown, United States Attorney, Elana S. Landau and Russell L. Carlberg, Assistant United States Attorneys, Fresno, CA, Attorneys for plaintiff-appellee United States of America.

Appeal from the United States District Court for the Eastern District of California, Lawrence J. O'Neill, District Judge, Presiding. D.C. No. 1:08-CR-00030-LJO.

Before: MYRON H. BRIGHT,^* HAWKINS, and MILAN D. SMITH, JR., Circuit Judges.

MILAN D. SMITH, JR., Circuit Judge:

Defendant-Appellant Peter Vongxay appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He challenges his conviction on three grounds. First, he argues that § 922(g)(1) violates the Second Amendment. Next, he asserts that § 922(g)(1) violates his right to equal protection under the Due Process Clause of the Fifth Amendment. Finally, he claims that the arresting officer's search violated his Fourth Amendment right to be free from unreasonable searches and seizures. We affirm the judgment of the district court on all Vongxay's claims.

FACTUAL AND PROCEDURAL BACKGROUND

Vongxay was arrested outside the After Dark Nightclub, a known venue of gang activity and violence, which was located within the area patrolled by Officer Alfred Campos of the Fresno Police Department. The club was a known hangout for at least two gangs: the Asian Crips and the Tiny Rascals. Based on his experience and training, Campos knew that these gang members typically dressed in blue L.A. Dodgers clothing. Campos testified that the two gangs engaged in "constant shootings at each other, armed with guns" and that they caused "disturbances."

On the night of Vongxay's arrest, Campos approached the After Dark Nightclub in a marked vehicle. He saw a group of Asian males loitering in front of the club dressed in the blue athletic apparel commonly worn by members of the gangs. As soon as the group noticed him they began to retreat out of the parking lot and funnel into the club. After calling for backup, Campos drove around the block and re-approached the club on foot. By that time, the same group of males had once again gathered outside the club. The first person Campos encountered was Vongxay. Campos "engaged in a conversation with him and asked him if he was leaving, or if he was going to go into the nightclub."

While Campos asked Vongxay about his presence at the club, he noticed that Vongxay appeared to be attempting to conceal something under his waistband. Specifically, Vongxay "turned his body to the left and kept his waist area away from [Campos] ... [a]nd ... he placed his left hand down towards his waist area as if he was covering something." Thinking that Vongxay was armed, Campos positioned himself behind Vongxay and asked him if he had any weapons. Vongxay said that he did not. Campos then asked Vongxay if he could search him for weapons. Vongxay did not verbally respond, but "placed his hands on his head." Campos began the search by feeling Vongxay's waistband and immediately felt the frame of a large handgun. As soon as Campos felt the gun, Vongxay attempted to pull away. A struggle ensued, and a loaded semiautomatic handgun fell from Vongxay's waistband. Vongxay continued to fight, bringing Campos down to the ground. It took the assistance of additional officers and a Taser gun to overpower Vongxay and arrest him.

Vongxay was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Vongxay had three previous, non-violent felony convictions: two for car burglary and one for drug possession. Vongxay filed a motion to dismiss the indictment on the ground that § 922(g)(1) violates the Second Amendment. He also argued that § 922(g)(1) violates his right to equal protection under the Fifth Amendment Due Process Clause. Finally, he moved to suppress the gun that was seized from him, asserting that he did not consent to the search, and that Campos had violated his Fourth Amendment right to be free from unreasonable searches and seizures. The district court denied Vongxay's motions in an oral ruling, finding that Vongxay had consented to the search and that § 922(g)(1) does not violate either the Second or Fifth Amendments. After a two-day trial, a jury found Vongxay guilty of being a felon in possession of a firearm.

JURISDICTION AND STANDARD OF REVIEW

We review the constitutionality of a statute de novo. United States v. Jones, 231 F.3d 508, 513 (9th Cir.2000). We also review constitutional challenges to the district court's denial of a motion to dismiss de novo. United States v. Palmer, 3 F.3d 300, 305 (9th Cir.1993). We review a district court's finding of consent to a search for clear error. United States v. Shaibu, 920 F.2d 1423, 1425 (9th Cir.1990). We have jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

Vongxay appeals his conviction for being a felon in possession of a firearm. He argues that 18 U.S.C. § 922(g)(1) violates the Second Amendment, and the equal protection component of the Fifth Amendment Due Process Clause. He also argues that he was searched without his consent in violation of his Fourth Amendment right to be free from unreasonable searches and seizures.

I. Second Amendment Claim

A. District of Columbia v. Heller

Vongxay argues that 18 U.S.C. § 922(g)(1) violates his Second Amendment right to bear arms. Section 922(g)(1) reads:

It shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Vongxay cites no authority holding that 18 U.S.C. § 922(g)(1) violates the Second Amendment, but asserts that District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), requires that conclusion. He is mistaken. Nothing in Heller can be read legitimately to cast doubt on the constitutionality of § 922(g)(1).

In Heller, a District of Columbia (D.C.) special policeman applied to register a handgun he wished to keep in his home for his personal protection. 128 S.Ct. at 2788. D.C. refused this request because it had a local ordinance making it a crime to carry an unregistered firearm, prohibiting the registration of handguns, and requiring residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Id. Heller filed suit on Second Amendment grounds, seeking to enjoin D.C. from enforcing the gun ordinance that prohibited him from keeping an unlicensed firearm in his home. He also challenged the trigger-lock requirement to the degree it unduly restricted the use of a functional firearm in his home. Id.

After analyzing the history of the Second Amendment, among other things, the Court held "that the Second Amendment conferred an individual right to keep and bear arms." Heller, 128 S.Ct. at 2799. Its specific holding as to Heller was that D.C.'s "ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." Heller, 128 S.Ct. at 2821-22. The majority then added:

The Constitution leaves the District of Columbia a variety of tools for combating [the problem of handgun violence in this country], including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.

Heller, 128 S.Ct. at 2822 (emphases added) (internal citation omitted). Accordingly, Heller had the right to register and keep a loaded firearm in his home for self-defense, provided he was "not disqualified from the exercise of Second Amendment rights." Id. The Court explained how such a disqualification could occur, stating:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on the longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Heller, 128 S.Ct. at 2816-2817 (emphasis added) (internal citation omitted). The Court further noted that "[w]e identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive." Heller, 128 S.Ct. at 2817, n. 26 (emphasis added). Thus, felons are categorically different from the individuals who have a fundamental right to bear arms,¹ and Vongxay's reliance on Heller is misplaced.

Vongxay nevertheless contends that the Court's language about certain long-standing restrictions on gun possession is dicta, and therefore not binding. We disagree. Courts often limit the scope of their holdings, and such limitations are integral to those holdings. Indeed, "[l]egal rulings in a prior opinion are applicable to future cases only to the degree one can ascertain from the opinion...