United States v. Meza-Rodriguez

• Decision Date: 20 August 2015
• Docket Number: No. 14–3271.,14–3271.
• Citation: 798 F.3d 664
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Mariano A. MEZA–RODRIGUEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

798 F.3d 664

UNITED STATES of America, Plaintiff–Appellee

v.Mariano A. MEZA–RODRIGUEZ, Defendant–Appellant.

No. 14–3271.

United States Court of Appeals, Seventh Circuit.

Argued June 5, 2015.

Decided Aug. 20, 2015.

Gail J. Hoffman, Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff–Appellee.

Joseph Aragorn Bugni, Attorney, Federal Defender Services of Wisconsin, Inc., Madison, WI, for Defendant–Appellant.

Before WOOD, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges.

Opinion

WOOD, Chief Judge.

When Mariano Meza–Rodriguez, a citizen of Mexico, was arrested in August 2013, he was carrying a .22 caliber cartridge. But it was what he did not have—documentation showing that he is lawfully in the United States—that concerns us now. His immigration status made his possession of the cartridge a crime under 18 U.S.C. § 922(g)(5), which prohibits foreigners who are not entitled to be in the United States (whom we will call “unauthorized aliens”) from possessing firearms. Meza–Rodriguez moved to dismiss the indictment that followed, arguing that § 922(g)(5) impermissibly infringed on his rights under the Second Amendment to the Constitution. The district court denied his motion on the broad ground that the Second Amendment does not protect unauthorized aliens. That rationale swept too far, and we do not endorse it. The court's judgment, however, was correct for a different reason: the Second Amendment does not preclude certain restrictions on the right to bear arms, including the one imposed by § 922(g)(5).

I

Meza–Rodriguez was brought to this country by his family when he was four or five years old. Without ever regularizing his status, he has remained here since that time. His current troubles began just before midnight on August 24, 2013, when City of Milwaukee police officers responded to a report that an armed man was at a local bar. The officers obtained a surveillance video showing a man pointing an object that resembled a firearm. Witnesses later identified that man as Meza–Rodriguez. A few hours later, the same officers responded to a different report of a fight at a neighboring bar. The officers broke up the fight and recognized Meza–Rodriguez as the man from the surveillance video. After a foot chase, they apprehended him and patted him down. This brief search turned up a .22 caliber cartridge in his shorts pocket.

The government later filed an indictment alleging that Meza–Rodriguez had violated 18 U.S.C. § 922(g)(5). That statute states, in pertinent part, that:

[i]t shall be unlawful for any person ...

(5) who, being an alien—

(A) is illegally or unlawfully in the United States;or

(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa ...

to ... possess in or affecting commerce, any firearm or ammunition....

Meza–Rodriguez moved to dismiss the indictment on the ground that § 922(g)(5) imposes an unconstitutional restraint on his Second Amendment right to bear arms. The magistrate judge recommended that the district court deny the motion, relying in part on the conclusion that the Second Amendment does not protect unauthorized aliens. The district court concurred and denied Meza–Rodriguez's motion. Meza–Rodriguez then pleaded guilty pursuant to an agreement with the government and preserved this issue for appeal. See Fed. R. Crim. P. 11(a)(2). The district court sentenced Meza–Rodriguez to time served with no supervised release, and he was later removed to Mexico. Meza–Rodriguez filed a timely notice of appeal from his conviction.

II

Before addressing the merits, we must ensure that Meza–Rodriguez's removal to Mexico has not rendered his appeal moot. We may not entertain this appeal unless it represents a live case or controversy. See U.S. Const. art. III, § 2. To satisfy this requirement, Meza–Rodriguez “must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) ). A person cannot continue to litigate “unless he can show a reasonable probability of obtaining a tangible benefit from winning.” Diaz v. Duckworth, 143 F.3d 345, 347 (7th Cir.1998). A convicted person who already has served his sentence must point to “some concrete and continuing injury,” i.e., “some ‘collateral consequence’ of the conviction.” Spencer, 523 U.S. at 7, 118 S.Ct. 978.

With the benefit of supplemental briefing from the parties, for which we thank them, we are satisfied that Meza–Rodriguez meets this standard. The immigration laws declare that any person who has been removed from the United States and who has committed an aggravated felony is permanently inadmissible. See 8 U.S.C. § 1182(a)(9)(A)(ii). As matters presently stand, Meza–Rodriguez meets both requirements for this permanent bar: he has been removed, and his violation of 18 U.S.C. § 922(g)(5) is an aggravated felony. See 8 U.S.C. § 1101(a)(43)(E)(ii).

Indeed, it is possible, though not certain, that a § 922(g)(5) violation might also qualify as a crime involving moral turpitude (CIMT). The latter term is not defined by statute, see Marin–Rodriguez v. Holder, 710 F.3d 734, 737 (7th Cir.2013), but the Board of Immigration Appeals and the courts have offered definitions. The Board has said that moral turpitude is “conduct that is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed other persons....” See Knapik v. Ashcroft, 384 F.3d 84, 89 (3d Cir.2004) (describing the definition used by the Board in its case and deferring to it). This court has suggested that such crimes are both “deliberately committed and ‘serious,’ either in terms of the magnitude of the loss that it causes or the indignation that it arouses in the law-abiding public.” Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir.2005) ; see also Mei v. Ashcroft, 393 F.3d 737 (7th Cir.2004) (discussing difficulty of creating a clear definition of the term). Persons who have been convicted of a CIMT are also inadmissible. See 8 U.S.C. § 1182(a)(2)(A)(i)(I).

Thus, if Meza–Rodriguez loses this appeal, he cannot return to the United States. If he wins, he does not face a permanent bar to admission. The possibility of returning to this country is a “tangible benefit” to Meza–Rodriguez; likewise, his current inability to reenter is a “concrete and continuing injury.” The appeal is therefore not moot.

The decision in Diaz might appear at first glance to be in some tension with that conclusion, but a closer look shows that it is not. Diaz also involved an unauthorized alien who had completed his sentence and had been removed from the country before we heard his appeal. See Diaz, 143 F.3d at 346. But that is the extent of the similarity between that case and ours. Diaz did not contest the validity of his conviction. Instead, he argued—in a habeas corpus proceeding, rather than in a direct appeal—that he had been denied due process when the prison revoked some of his good-time credit, causing him to serve a longer sentence. See id. Our mootness finding did not depend on Diaz's deportation; we concluded that there was no relief we could order because he already had completed his sentence. The only consequence of the extended prison time about which he was complaining was the possibility that he might be subject to enhanced punishment for a future criminal violation. This possibility, we found, was too speculative to avoid mootness, particularly given the fact that Diaz already had been removed and thus was unlikely to commit future crimes within the country. See id. at 346–47.

The consequences of Meza–Rodriguez's conviction are not theoretical; his right ever to reenter the United States hangs in the balance. Diaz recognized that “statutory disabilities such as loss of the right to vote or the right to own a gun” are sufficient to save an appeal from mootness. Id. at 346. Meza–Rodriguez faces a comparable statutory disability. Diaz thus actually supports our conclusion that this appeal presents a live controversy. See also United States v. Ashraf, 628 F.3d 813, 822 (6th Cir.2011) (defendant's removal did not render appeal of his conviction moot because reversal “might affect the Attorney General's discretionary decision to allow him back in the country”); United States v. Quezada–Enriquez, 567 F.3d 1228, 1232 (10th Cir.2009) (same, because reversal of the conviction “could provide Quezada–Enriquez with relief from the collateral consequences of conviction”); United States v. Jurado–Lara, 287 Fed.Appx. 704, 707 (10th Cir.2008) (same with respect to appeal of a sentence, because a reduction in the sentence could affect the applicability of the aggravated felon bar); United States v. Hamdi, 432 F.3d 115, 118–21 (2d Cir.2005) (same for appeal of a sentence, because of the “substantial impact” a reduction in that sentence would have on defendant's ability to obtain discretionary relief to be admitted into the country); Perez v. Greiner, 296 F.3d 123, 126 (2d Cir.2002) (noting in dicta that a permanent bar on reentry was enough to prevent a habeas petition from becoming moot). We therefore find that this appeal is not moot, and we move on to address Meza–Rodriguez's substantive arguments.

III

Meza–Rodriguez argues that 18 U.S.C. § 922(g)(5) impermissibly infringes on his rights under the Second Amendment to the Constitution. We review the constitutionality of federal statutes de novo. See United States v. Sidwell, 440 F.3d 865, 870 (7th Cir.2006).

A

We first tackle the question whether the Second Amendment protects unauthorized non-U.S. citizens within our borders. The Amendment provides that “the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. The Supreme Court has confirmed that this language confers an “individual right to possess...