U.S. v. Rene E.

• Decision Date: 31 August 2009
• Docket Number: No. 08-1974.,08-1974.
• Citation: 583 F.3d 8
• Parties: UNITED STATES of America, Appellee, v. RENE E., Juvenile Male, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

583 F.3d 8

UNITED STATES of America, Appellee, v. RENE E., Juvenile Male, Defendant, Appellant.

No. 08-1974.

United States Court of Appeals, First Circuit.

Heard June 5, 2009.

Decided August 31, 2009.

J. Hilary Billings on brief for appellant.

Rene M. Bunker, Assistant United States Attorney, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

Juvenile Rene E. ("appellant") was charged with possessing a handgun in violation of 18 U.S.C. § 922(x)(2)(A) and 18 U.S.C. § 5032, the charging provision of the Juvenile Delinquency Act. After his motions to dismiss and motion to suppress were denied, he entered a conditional guilty plea. On appeal, he raises constitutional challenges to 18 U.S.C. § 922(x)(2), arguing both that it violates his rights under the Second Amendment, as interpreted by the Supreme Court in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and that it exceeds Congress's authority under the Commerce Clause. He also challenges the sentence he received under the Juvenile Delinquency Act, arguing that the district court erred in determining the maximum sentence to which a similarly situated adult would be subject under the United States Sentencing Guidelines.

We hold that 18 U.S.C. § 922(x)(2)(A) does not violate the Second Amendment, and we reaffirm our holding in United States v. Cardoza, 129 F.3d 6 (1st Cir. 1997), that section 922(x)(2)(A) does not exceed Congress's Commerce Clause authority. Lastly, because appellant is no longer in detention or under juvenile supervision, we conclude that his sentencing challenge is moot. Therefore, we affirm.

I.

A. Factual Background

Because this appeal follows a conditional guilty plea, we state the facts as set forth in the unchallenged portions of the revised Presentence Investigation Report ("PSR").¹ See United States v. Calderon-Pacheco, 564 F.3d 55, 56 (1st Cir.2009).

On May 5, 2008, sources informed agents of the Central Maine Violent Crime Task Force that appellant was in possession of stolen property, drugs, a handgun, and a bullet-proof vest. Agents went to appellant's residence, where he lived with his mother and grandmother. His grandmother answered the door and escorted the agents to appellant's room. They knocked on the bedroom door and identified themselves. A short time later, appellant came out of his room. The agents immediately observed drug paraphernalia and stolen property that they had been told appellant possessed. The agents asked appellant if they could search his room, and he consented.

During the search, the agents discovered a box of hollow-point ammunition for a .38 caliber handgun, a plastic bag containing dried marijuana, and a silver-colored revolver with a wooden grip. At some point, appellant observed the agents' discovery of the handgun. When this happened, he fled the residence by jumping through the living room window. An agent who pursued him was injured when he fell from the window. Appellant escaped. Sixteen days later, on May 21, 2008, he turned himself in and was arrested.

B. Proceedings in the District Court

After his arrest, appellant's case was transferred from state authorities to the Bureau of Alcohol, Tobacco, Firearms, and Explosives.² Subsequently, on May 29, 2008, the government filed a Juvenile Information and supporting affidavit that charged appellant with an act of juvenile delinquency, namely, the knowing possession of a handgun in violation of 18 U.S.C. § 922(x)(2)(A) and 18 U.S.C. § 5032.³ Appellant was seventeen at the time of the charged offense. On June 10, 2008, appellant filed concurrent motions to suppress the evidence acquired in the search of his bedroom and to dismiss the Information because 18 U.S.C. § 922(x)(2)(A) exceeded Congress's power under the Commerce Clause. The district court denied the motion to dismiss. At the suppression hearing on July 1, 2008, appellant again moved the court to dismiss the Information, this time in light of the Supreme Court's decision on June 26, 2008, in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The district court denied the motion.

Appellant's motion to suppress was denied at the close of the hearing. He then entered a conditional guilty plea, see Fed. R.Crim.P. 11(a)(2), reserving his rights to appeal the district court's adverse rulings on the motions to dismiss and his motion to suppress.

A PSR was subsequently prepared. The PSR explained that because appellant was being sentenced as a juvenile under the Juvenile Delinquency Act, the United States Sentencing Guidelines ("Sentencing Guidelines" or "Guidelines") did not apply. See United States v. R.L.C., 503 U.S. 291, 307 n. 7, 112 S.Ct. 1329, 117 L.Ed.2d 559 (1992). However, a sentence under the Juvenile Delinquency Act may not exceed the sentence that a similarly situated adult would receive after application of the relevant Sentencing Guidelines. See 18 U.S.C. § 5037(c)(1)(B), (c)(2)(A)(ii), (c)(2)(B)(ii). Thus, the PSR explained, it was necessary to determine the maximum sentence a similarly situated adult would receive under the Sentencing Guidelines.

Appellant's offense, 18 U.S.C. § 922(x)(2), does not have a corresponding Guideline. Thus, the PSR calculated the base offense level by determining the "most analogous offense guideline." U.S.S.G. § 2X5.1. The PSR selected Guideline section 2K2.1(a)(7), a catchall provision for violations of firearms regulations, which has a base offense level of twelve. It applied a two-point reduction for acceptance of responsibility, see id. § 3E1.1(a), resulting in a total offense level of ten. Appellant's previous juvenile adjudications corresponded to a criminal history category of III. See id. ch. 5, pt. A. In light of these values, the PSR determined that the applicable Guideline range for a similarly situated adult would be ten to twelve months' imprisonment. Id. § 5G1.1(c)(1).

Appellant objected to the PSR's conclusion that his juvenile sentence should be determined by calculating the maximum Guideline sentence for a "similarly situated adult," since appellant's offense, possession of a handgun by a juvenile, was one an adult could not commit. See 18 U.S.C. § 922(x)(2)(A). Appellant also objected to the determination that Guideline section 2K2.1(a)(7) was the most analogous offense Guideline, and argued that the offenses enumerated in Guideline section 2K2.1(a)(8) were more closely analogous.

A revised PSR was released, but no changes were made in response to these objections. At the juvenile disposition hearing, the district court rejected appellant's arguments and found that section 2K2.1(a)(7) was the most analogous offense Guideline. Pursuant to the sentencing provisions of the Juvenile Delinquency Act, the court sentenced appellant to six months' detention, followed by six months' juvenile supervision. See 18 U.S.C. § 5037.

This appeal followed. Appellant again asserts that 18 U.S.C. § 922(x)(2)(A) is unconstitutional, both because it violates the Second Amendment and because it exceeds Congress's power under the Commerce Clause. In addition, appellant argues that the district court erred in determining that Guideline section 2K2.1(a)(7) was the most analogous offense Guideline for purposes of calculating the maximum term of detention to which he could be sentenced.

II.

We review constitutional challenges to a federal statute de novo. United States v. Hussein, 351 F.3d 9, 14 (1st Cir.2003).

A. Second Amendment

The Second Amendment states: "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." U.S. Const. amend. II. In District of Columbia v. Heller, the Supreme Court held that D.C. statutes banning the possession of handguns and requiring that all firearms in the home be kept inoperable violated the Second Amendment. 128 S.Ct. at 2821-22. The Court based its holding on a reading of the amendment's main clause, the "operative clause." Id. at 2789. The Court read the operative clause to "guarantee the individual right to possess and carry weapons in case of confrontation." Id. at 2797. Although not "codifi[ed]" in the amendment, this right included a right to "self-defense," which the Court described as "the central component of the right itself." Id. at 2801; see also id. at 2817 ("[T]he inherent right of self-defense has been central to the Second Amendment right."). Thus, the statutes in question were unconstitutional because they "prohibit[] . . . an entire class of `arms' that is overwhelmingly chosen by American society for th[e] lawful purpose [of self-defense]," and "make[] it impossible for citizens to use [firearms] for the core lawful purpose of self-defense."⁴ Id. at 2817-18.

The Heller Court was careful to note that the rights guaranteed by the Second Amendment were "not unlimited." Id. at 2816. The Court identified limits deriving from various historical restrictions on possessing and carrying weapons. Id. ("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."). As examples of "longstanding" restrictions that were "presumptively lawful" under the Second Amendment, the Court listed: (1) laws prohibiting the carrying of concealed weapons, (2) laws prohibiting the possession of firearms by felons and the mentally ill, (3) laws prohibiting the carrying of firearms "in sensitive places such as schools and government buildings," (4) laws imposing conditions and qualifications on the commercial sale of arms, and (5) laws prohibiting the carrying of "dangerous and unusual weapons." Id. at 2816-17 & n. 26. These restrictions, as well as others similarly rooted in history, were left intact by...