United States v. Huitron–Guizar

• Decision Date: 07 May 2012
• Docket Number: No. 11–8051.,11–8051.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Emmanuel HUITRON–GUIZAR, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

678 F.3d 1164

UNITED STATES of America, Plaintiff–Appellee,

v.Emmanuel HUITRON–GUIZAR, Defendant–Appellant.

No. 11–8051.

United States Court of Appeals, Tenth Circuit.

May 7, 2012.

Ronald Pretty, Cheyenne, WY, for Defendant–Appellant.

Todd Shugart, Assistant United States Attorney, (and Christopher A. Crofts, United States Attorney, on the brief), Casper, WY, for Plaintiff–Appellee.

Before BRISCOE, Chief Judge, HOLLOWAY, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Defendant–Appellant Emmanuel Huitron–Guizar entered a conditional guilty plea to being an illegal alien in possession of firearms transported or shipped in interstate commerce, 18 U.S.C. §§ 922(g)(5)(A), 924(a)(2), and was sentenced to 18 months' imprisonment. Mr. Huitron–Guizar is to be delivered upon release to an immigration official for deportation. On appeal, he argues that § 922(g)(5)(a) is unconstitutional and that the district court committed various sentencing errors in applying the Sentencing Guidelines. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

Background

Mr. Huitron–Guizar was born in Mexico and brought to Wyoming at age three. In March 2011, officers executed a warrant on his home and discovered three firearms—a 7.62x39mm rifle, a 12–gauge semi-automatic shotgun, and a Smith & Wesson semi-automatic pistol. They learned from his sister that Mr. Huitron–Guizar, now 24 years old, was, unlike her, not a U.S. citizen. The district court denied his motion to dismiss the indictment on grounds that § 922(g)(5) unconstitutionally abridges the right to bear arms as interpreted in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and violates the Fourteenth Amendment's Equal Protection Clause (which applies to the federal government through the Fifth Amendment's Due Process Clause). The district court also declined to apply a lower “sporting purposes” base offense level, U.S.S.G. § 2K2.1(b)(2), or to depart or vary downward based upon Mr. Huitron–Guizar's age and allegations of governmental misconduct.

Discussion

The constitutionality of a federal statute is reviewed de novo, United States v. Carel, 668 F.3d 1211, 1216 (10th Cir.2011). Challenges to a sentence's substantive reasonableness are reviewed for abuse of discretion; legal or procedural conclusions about the Guidelines are reviewed de novo. United States v. McComb, 519 F.3d 1049, 1053 (10th Cir.2007).

A. Second Amendment and Equal Protection Challenges

Heller held that the Second Amendment protects an individual right to possess a firearm, unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, like self-defense within the home. This right was understood by eminent authorities like William Blackstone and James Wilson as but an application of the natural right of self-preservation.554 U.S. at 593–94, 585, 128 S.Ct. 2783. Yet no right is absolute. The right to bear arms, however venerable, is qualified by what one might call the “who,” “what,” “where,” “when,” and “why.” For instance, it is unlawful to knowingly receive guns with obliterated serial numbers, see18 U.S.C. § 922(k); United States v. Marzzarella, 614 F.3d 85, 100–01 (3d Cir.2010). A juvenile, with some exceptions, cannot possess a handgun, see18 U.S.C. § 922(x), United States v. Rene E., 583 F.3d 8, 16 (1st Cir.2009). An airline passenger may not carry aboard a concealed firearm, see49 U.S.C. § 46505, United States v. Davis, 304 Fed.Appx. 473 (9th Cir.2008). Nor may a drug dealer use or carry a weapon to protect his stash, see18 U.S.C. § 924(c), United States v. Jackson, 555 F.3d 635, 636 (7th Cir.2009).

Our issue concerns the “who.” Section 922(g), a part of the amended Gun Control Act of 1968, forbids gun possession by nine classes of individuals: felons, fugitives, addicts or users of controlled substances, the mentally ill, illegal and non-immigrant aliens, the dishonorably discharged, renouncers of their citizenship, those subject to court orders for harassing, stalking, or threatening intimate partners or their children, and those convicted for misdemeanor domestic violence. No Second Amendment challenge since Heller to any of these provisions has succeeded. See, e.g., United States v. McCane, 573 F.3d 1037, 1047 (10th Cir.2009) (felons); In re U.S., 578 F.3d 1195, 1200 (10th Cir.2009) (misdemeanor domestic violence); United States v. Richard, 350 Fed.Appx. 252, 260 (10th Cir.2009) (drug users); United States v. Reese, 627 F.3d 792, 802–04 (10th Cir.2010) (domestic protection order). Last year, the instant provision, on illegal aliens, was upheld against Second Amendment challenge by the Fifth Circuit, United States v. Portillo–Munoz, 643 F.3d 437, 442 (5th Cir.2011), and the Eighth Circuit, United States v. Flores, 663 F.3d 1022 (8th Cir.2011).

Mr. Huitron–Guizar agrees that those guilty of serious crimes and the mentally ill are sensibly stripped of firearms they might otherwise lawfully keep. Yet he wonders what it is about aliens that permits Congress to impose what he considers a similar disability? The starting point to any answer was given by Justice Jackson in Johnson v. Eisentrager, 339 U.S. 763, 770, 70 S.Ct. 936, 94 L.Ed. 1255 (1950):

The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.

This ascending scale of constitutional rights is elaborate. An alien outside the country has fewer rights than one within, e.g., an alien held at the border has no right to a deportation hearing. Shaughnessy v. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953). An unlawfully present alien has fewer rights than one lawfully here; an illegal alien generally has no right to assert a selective-enforcement claim to thwart deportation. Reno v. American–Arab Anti–Discrimination Comm., 525 U.S. 471, 488, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). A lawful alien here fewer than five years can be denied enrollment in Medicare, unlike one here for, say, a decade. Mathews v. Diaz, 426 U.S. 67, 87, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). A temporary resident alien has fewer rights than a permanent resident alien; the former, for example, may be barred from making campaign contributions. Bluman v. Fed. Election Comm'n, 800 F.Supp.2d 281, 288 (D.D.C.2011), aff'd––– U.S. ––––, 132 S.Ct. 1087, 181 L.Ed.2d 726 (2012). Likewise, a lawful permanent resident has fewer rights than a citizen, since a state can form a citizens-only police force. Foley v. Connelie, 435 U.S. 291, 300, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978). Finally, one right is limited to natural born citizens: eligibility to run for president. U.S. Const., Art. II, § 1, cl. 5. The line separating lawful and unlawful aliens is often as bright as that between aliens and citizens.

Mr. Huitron–Guizar's implicit Equal Protection argument is that Congress does not have power to “discriminate against non-citizens by not allowing them to have all the constitutional rights that United States citizens have.” Aplt. Br. 16. This is not correct. Federal statutes that classify based on alienage need only a rational basis; they flow from plenary powers over admission, exclusion, naturalization, national security, and foreign relations. Mathews v. Diaz, 426 U.S. at 81, 96 S.Ct. 1883. The Court has “firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens.” Demore v. Kim, 538 U.S. 510, 522, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). Mr. Huitron–Guizar cannot meet his burden of showing that there is no rational relationship (more below) between the classification and a legitimate government end. Equal protection requires that similarly situated individuals be treated similarly; aliens, let alone those unlawfully here, are simply not situated like citizens.

More vexing is the Second Amendment claim. Until last year the federal alien-in-possession statute had not been challenged in a U.S. Court of Appeals under Heller. Does that amendment even protect illegal aliens? It provides: “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.” (Emphasis added.) We know that the Fifth Amendment applies to illegal aliens within our territory because it provides that “No person shall be....” Kwong Hai Chew v. Colding, 344 U.S. 590, 596–98, 73 S.Ct. 472, 97 L.Ed. 576 (1953). So does the Sixth Amendment, which protects the “accused,” who could be a citizen—or not. Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 41 L.Ed. 140 (1896). We also know that the Fourteenth Amendment's Due Process and Equal Protection Clauses apply to “any person.” Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982).

Yet the meaning of “the people” is less clear. The only Supreme Court case to scrutinize the phrase is United States v. Verdugo–Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), which considered the right of aliens (lawful or not) to the protections of the Fourth Amendment, another “right of the people.” The Court wrote:

‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution.... [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise...