United States v. Baker
| Decision Date | 09 November 2022 |
| Docket Number | 2:20-cr-00301-DBB |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MATTHEW A. BAKER, Defendant. |
| Court | U.S. District Court — District of Utah |
UNITED STATES OF AMERICA, Plaintiff,
v.
MATTHEW A. BAKER, Defendant.
No. 2:20-cr-00301-DBB
United States District Court, D. Utah
November 9, 2022
MEMORANDUM DECISION AND ORDER DENYING [138] MOTION TO DISMISS COUNT 4 OF THE SUPERSEDING INDICTMENT
DAVID BARLOW UNITED STATES DISTRICT JUDGE
On September 20, 2022, Defendant Matthew A. Baker filed his Motion to Dismiss Count 4 of the Superseding Indictment.[1] Count 4 charges Mr. Baker with unlawfully possessing ammunition as a felon in violation of 18 U.S.C. § 922(g)(1).[2] In his motion, Mr. Baker argues that § 922(g)(1) violates the Second Amendment under the test announced in the Supreme Court's recent decision, New York State Rifle & Pistol Ass'n, Inc. v. Bruen.[3] For the reasons stated below, Mr. Baker's motion is denied.
BACKGROUND
On March 26, 2019, Mr. Baker pleaded guilty and was convicted of two federal felony offenses in Case No. 2:19-cr-00094-DS.[4] Specifically, Mr. Baker was convicted of one count of Health Care Fraud and one count of Destruction, Alteration, or Falsification of Records in a
Federal Investigation.[5] For those offenses Mr. Baker was sentenced to a period of imprisonment of twelve months and one day, followed by three years of supervised release.[6]
On September 9, 2020, Mr. Baker was indicted by a federal grand jury and charged in this case, No. 2:20-cr-301-DBB, with Wire Fraud and other related offenses.[7] On March 30, 2022, while Mr. Baker was on pretrial release in this case, No. 2:20-cr-301-DBB, and still on supervised release in Case No. 2:19-cr-00094-DS, officers with United States Probation and Pretrial Services (“USPO”) conducted a search of Mr. Baker's residence. During the search, USPO officers found two boxes of ammunition. The officers found a box containing approximately 40 rounds of .38 special ammunition in a dresser drawer of the master bedroom. The officers also found a box containing approximately 37 rounds of 9mm ammunition inside a duffel bag in the basement.[8]
Thereafter, on August 10, 2022, a federal grand jury returned a superseding indictment charging Mr. Baker with two counts of Wire Fraud in violation of 18 U.S.C. § 1343; Contempt, in violation of 18 U.S.C. § 401(3); and Felon in Possession of Ammunition, in violation of 18 U.S.C. § 922(g)(1).[9] Section 922(g)(1) states: “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 . . . possess in or affecting commerce, any firearm or ammunition.”[10]
In his motion, Mr. Baker seeks to have this court dismiss Count 4 of the superseding indictment. He argues that 18 U.S.C. § 922(g)(1) is no longer viable following the Supreme
Court's recent decision in Bruen. Specifically, Mr. Baker contends that even though he is a felon the Second Amendment protects his right to bear arms, and that the government cannot satisfy its burden to show a longstanding American tradition prohibiting felons from possessing firearms.[11]Mr. Baker also argues that § 922(g)(1) is unconstitutional as applied to him because his prior felony convictions were for non-violent offenses.[12]
DISCUSSION
The Second Amendment 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.”[13]In District of Columbia v. Heller, the Supreme Court recognized an individual right under the Second Amendment to keep and bear arms, not merely a right tied to militia service.[14] The Court clarified, however, that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.”[15] The Heller Court stated, “[a]though 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 longstanding prohibitions on the possession of firearms by felons . . . .”[16]The Heller Court characterized such regulations as “presumptively lawful regulatory measures.”[17] Two years later, in McDonald v. Chicago, the Supreme Court reiterated this assurance.[18] In the context of holding that the Second Amendment applies to the states through
the Fourteenth Amendment's Due Process Clause, the Court stated: “We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as prohibitions on the possession of firearms by felons . . . .”[19]
Relying on Heller and McDonald, courts of appeals, including the Tenth Circuit, have uniformly upheld the constitutionality of § 922(g)(1).[20] In United States v. McCane, the Tenth Circuit rejected the defendant's Second Amendment challenge to § 922(g)(1) explaining that “[t]he Supreme Court . . . explicitly stated in Heller that ‘nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.'”[21] Then, in an unpublished majority decision in In re United States, the Tenth Circuit explained: “We have already rejected the notion that Heller mandates an individualized inquiry concerning felons pursuant to § 922(g)(1).”[22] And, more recently, in United States v. Griffith, the Tenth Circuit reiterated that § 922(g)(1)'s prohibition of firearms by felons is constitutional.[23] Simply put, post-Heller, the Tenth Circuit has not permitted either facial or as-applied challenges to § 922(g)(1).[24]
In his motion, Mr. Baker argues that the Supreme Court's decision in Bruen rendered § 922(g)(1) presumptively invalid and requires this court to examine the constitutionality of the statute using the standard set forth in Bruen.[25] Mr. Baker also asserts that when examining whether § 922(g)(1) is constitutional, this court should disregard the Supreme Court's dicta in Heller regarding the “longstanding prohibition[] on the possession of firearms by felons,”[26] and must require the government to prove that “that the prohibition § 922(g)(1) imposes on Mr. Baker is consistent with ‘the Nation's historical tradition of firearm regulation.'”[27]
This court is bound, however, by Tenth Circuit precedent. Therefore, unless the Supreme Court's decision in Bruen superseded the Tenth Circuit's decision in McCane, or unless the Tenth Circuit or Supreme Court determines that § 922(g)(1) is not constitutional, this court is compelled to follow McCane.[28] “This court's role is to apply Tenth Circuit precedent, not to reconsider it.”[29] In the absence of clear Supreme Court precedent overruling [McCane], this
[c]ourt will ‘follow the case which directly controls, leaving to the [Tenth Circuit] the prerogative of overruling its own decisions.'”[30] In other words, Mr. Baker's motion turns on whether the Supreme Court's decision in Bruen constitutes an intervening decision that has clearly and unmistakably overruled Tenth Circuit precedent upholding the constitutionality of § 922(g)(1). Having carefully reviewed Bruen, the court concludes that it is not.
There is nothing in Bruen to indicate that either Heller, Tenth Circuit precedent based on Heller, or § 922(g)(1), are no longer valid. As in Heller and McDonald, the issue before the Court in Bruen concerned regulations that burdened “a law-abiding citizen's right to armed self-defense.”[31] Specifically, the petitioners in Bruen were challenging New York's concealed carry licensing law, which required applicants to show “proper cause” (i.e., a special need for self-protection, distinguishable from the community's need) in order to get a license.[32]
In the opening paragraph of Bruen, Justice Thomas, writing for the Court, expressly reaffirmed Heller and McDonald, and noted that both cases defined the right to bear arms as belonging to “law-abiding, responsible citizens.”[33] The Court said:
In District of Columbia v. Heller, 554 U.S. 570, (2008), and McDonald v. Chicago, 561 U.S. 742, (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for self-defense. We too agree, and how hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home.[34]
The Court noted that it was undisputed that the petitioners were “two ordinary law-abiding, adult citizens” who are “part of ‘the people' whom the Second Amendment protects.”[35]Although the majority opinion did not specifically address Heller's treatment of laws prohibiting the possession of firearms by felons, that issue was simply not before the Court. Nonetheless, in keeping with Heller and McDonald, the Court reiterated throughout its opinion that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms for self-defense.”[36] And in the concluding paragraph of the majority opinion, the Court repeated that the right to bear and keep arms belonged to “law-abiding citizens with ordinary self-defense needs.”[37]
The concurrences and dissents in Bruen provide additional support for the conclusion that Bruen did not alter ...
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