United States v. DeCastro

• Decision Date: 01 June 2012
• Docket Number: Docket No. 10–3773.
• Parties: UNITED STATES of America, Appellee, v. Angel DECASTRO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

682 F.3d 160

UNITED STATES of America, Appellee,

v.Angel DECASTRO, Defendant–Appellant.

Docket No. 10–3773.

United States Court of Appeals, Second Circuit.

Argued: Nov. 30, 2011.

Decided: June 1, 2012.

Colleen P. Cassidy, Federal Defenders of New York, Inc., New York, NY, for Appellant.

Brian A. Jacobs (Brent S. Wible, on the brief), Assistant United States Attorney, for Preet Bharara, United States Attorney, Southern District of New York, New York, NY, for Appellee.

Before: JACOBS, Chief Judge, HALL and LYNCH, Circuit Judges.

DENNIS JACOBS, Chief Judge:

Following a bench trial on stipulated facts in the United States District Court for the Southern District of New York (Patterson, J.), Angel Decastro was convicted of transporting into his state of residence a firearm acquired in another state in violation of 18 U.S.C. § 922(a)(3). Decastro appeals on the ground that § 922(a)(3) violates his Second Amendment right to keep and bear arms. He argues: [1] that § 922(a)(3) is unconstitutional on its face; and [2] that, in combination with New York's licensing scheme, the prohibition on the transportation into New York of a firearm purchased in another state made it virtually impossible for him to obtain a handgun for self-defense. For the following reasons, the judgment of the district court is affirmed.

BACKGROUND

In 2002, Angel Decastro moved from Florida to New York to help run his step-father's dry cleaning business. In July 2004, an encounter between Decastro and a customer escalated into a gang confrontation. Police arrested Decastro and the customer, but all charges were dropped. Decastro feared retaliation, and on the recommendation of a New York police detective, requested a handgun license application from the New York Police Department (“NYPD”). He did not submit an application because (he maintains) he was told by an NYPD desk officer that there was “no way” his application would be approved.

Decastro, who was licensed to own a handgun in Florida, purchased firearms from a gun dealer on a visit there in February 2005: a Taurus model PT92 pistol (the “Taurus Pistol”) and a Glock nine-millimeter handgun. In connection with the purchase, Decastro was required to sign Form 4473 of the Bureau of Alcohol, Tobacco, Firearms and Explosives. On it he falsely gave Florida rather than New York as his state of residence. Decastro left the Glock handgun in Florida but transported the Taurus Pistol home to New York, where he kept it at the dry-cleaning business for protection.

The Decastro family sold the dry-cleaning business in May 2005; in February 2006, Decastro moved to Florida. Before leaving New York, Decastro gave the Taurus Pistol to a relative in the Bronx. Decastro planned to transport it back to Florida in a few months' time.

In July 2006, a Bronx woman reported to the NYPD that she had found the Taurus Pistol in her closet along with other items that belonged to her common-law husband (who was a relative of Decastro). A police search of the closet yielded the Taurus Pistol as well as two other guns, handcuffs, masks, and fake police shields.

Decastro was subsequently indicted for violating U.S.C. § 922(a)(3). That statute (subject to certain exceptions not applicable here ¹) prohibits anyone other than a licensed importer, manufacturer, dealer or collector from transporting into his state of residence a firearm purchased or obtained outside that state. Decastro moved to dismiss the indictment on the ground that the statute violated his Second Amendment right to possess a gun for self-defense. He argued that § 922(a)(3) was facially unconstitutional under District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and that New York City's restrictive licensing requirements were tantamount to a ban. In support, Decastro submitted a chart showing that few applications for pistol licenses were received and issued by New York City in the period 2004–2006. For residential-premises handgun licenses, an average of 858 new applications were submitted annually and an average of 620 licenses were issued; for business-premises licenses, an average of 59 new applications were submitted annually and an average of 50 licenses were issued.²

The district court declined to dismiss the indictment. Inferring from the NYPD statistics that there is a high grant rate for handgun licenses in New York City, the court rejected Decastro's argument that he was effectively forced to violate § 922(a)(3) by traveling outside the state in order to secure a handgun for self-defense. The court did not address Decastro's argument that § 922(a)(3) is unconstitutional on its face.

At the bench trial, the parties stipulated to the following facts:

[1] Decastro had never been a licensed importer, manufacturer, dealer or collector of firearms;

[2] From at least 2002 through February 2006, Decastro resided in New York, not Florida;

[3] In April 2005, Decastro purchased the Taurus Pistol from a firearms dealer in Florida;

[4] After purchasing it in April 2005 but prior to February 2006—while he resided in New York—Decastro knowingly and willfully transported the Taurus Pistol from Florida to New York, and gave it to a resident of the Bronx;

[5] Decastro never applied for and was not issued a license to possess a firearm in New York, and when he transported the pistol from Florida to New York he knew that his conduct was unlawful.

The district court found Decastro guilty on the sole count of the indictment and sentenced him to two years of probation (and imposed a mandatory $100 special assessment). This appeal followed.

DISCUSSION

On appeal, Decastro challenges the constitutionality of 18 U.S.C. § 922(a)(3) on two grounds: [1] it is facially unconstitutional because it impermissibly burdens the right to keep and bear arms guaranteed by the Second Amendment; and [2] when combined with New York's licensing scheme, the prohibition on the transportation into New York of a firearm purchased in another state made it practically impossible for him to secure a handgun for self-defense. The district court confined its analysis to the second argument; on appeal Decastro focuses principally on the first.

As to each argument, our review is de novo. See United States v. Pettus, 303 F.3d 480, 483 (2d Cir.2002).

I

When “a defendant has already been convicted for specific conduct under the challenged law,” a court considering a facial challenge to a criminal statute must “ ‘examine the complainant's conduct before analyzing other hypothetical applications.’ ” United States v. Farhane, 634 F.3d 127, 139 (2d Cir.2011) (quoting Vill. of Hoffman Estates v. Flipside Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). We are guided by “ ‘the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.’ ” Parker v. Levy, 417 U.S. 733, 759, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). It follows that a defendant who fails to demonstrate that a challenged law is unconstitutional as applied to him has “necessarily fail[ed] to state a facial challenge, which requires [him] to establish that no set of circumstances exists under which the statute would be valid.” Diaz v. Paterson, 547 F.3d 88, 101 (2d Cir.2008) (internal quotation marks and brackets omitted). Since Decastro has already been convicted under § 922(a)(3), the first step in our consideration of his facial challenge is to assess the burden, if any, that the statute has imposed on Decastro himself.

II

A.

Decastro's first argument with respect to the unconstitutionality of § 922(a)(3) as applied to him focuses on the interplay between New York state licensing laws and federal firearms law. Decastro argues that because the restrictive licensing scheme in his home state effectively compelled him to go elsewhere to get a handgun, § 922(a)(3) prevented him from exercising his Second Amendment right to possess a handgun for self-defense.

The premise of Decastro's argument is that New York's licensing scheme is itself constitutionally defective; his argument is therefore tantamount to a challenge to that scheme. However, because Decastro failed to apply for a gun license in New York, he lacks standing to challenge the licensing laws of the state. “As a general matter, to establish standing to challenge an allegedly unconstitutional policy, a plaintiff must submit to the challenged policy.” Jackson–Bey v. Hanslmaier, 115 F.3d 1091, 1096 (2d Cir.1997); see also Allen v. Wright, 468 U.S. 737, 746, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (holding that parents lacked standing to challenge the tax-exempt status of allegedly racially discriminatory private schools to which their children had not applied); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166–68, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) (holding that an African American lacked standing to challenge the discriminatory membership policy of a club to which he never applied). Failure to apply for a license would not preclude Decastro's challenge if he made a “substantial showing” that submitting an application “would have been futile.” Jackson–Bey, 115 F.3d at 1096;cf. Bach v. Pataki, 408 F.3d 75, 82–83 (2d Cir.2005) (holding that plaintiff's challenge to New York's gun licensing laws applicable to non-residents was justiciable despite his failure to apply for a license because he was statutorily ineligible for a license and therefore submitting an application would have been a “futile gesture” (internal quotation marks omitted)). But the only evidence Decastro offers to show futility is the hearsay statement of an unidentified police desk officer who had no apparent connection to the licensing process, and whose view is incompatible with the...