United States v. Jimenez, Docket No. 17-287-cr

• Decision Date: 10 July 2018
• Docket Number: Docket No. 17-287-cr,August Term, 2017
• Citation: 895 F.3d 228
• Parties: UNITED STATES of America, Appellee, v. Jose JIMENEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

895 F.3d 228

UNITED STATES of America, Appellee,
v.
Jose JIMENEZ, Defendant-Appellant.

Docket No. 17-287-cr
August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: March 8, 2018
Decided: July 10, 2018

895 F.3d 230

DANIEL HABIB, Federal Defenders of New York, Inc., New York, N.Y., for Defendant-Appellant.

SAMUEL RAYMOND, Assistant United States Attorney (Margaret Garnett, Assistant United States Attorney, on the brief ), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, N.Y., for Appellee.

Before: POOLER, RAGGI, and DRONEY, Circuit Judges.

POOLER, Circuit Judge:

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Jose Jimenez pled guilty to possession of ammunition after having been dishonorably discharged from the military, in violation of 18 U.S.C. § 922(g)(6). Having properly objected at the district court and reserved his right to appeal, he now challenges the validity of Section 922(g)(6) under the Second Amendment. Assuming he is entitled to Second Amendment protection, we find that Section 922(g)(6) as applied to Jimenez withstands intermediate scrutiny. Accordingly, we AFFIRM the judgment of the district court.

BACKGROUND

On June 3, 2015, Jose Jimenez was arrested in unlawful possession of a bullet retrieved from his person following an attempted undercover firearms purchase. Jimenez had agreed to drive Oscar Sanchez to the parking lot of a fast food restaurant in the Bronx on June 3, 2015 in exchange for $40. Sanchez had arranged to sell 20 handguns to a person who was, in fact, an undercover detective from the New York Police Department ("NYPD"). Jimenez claims that Sanchez did not inform him of the purpose of the trip.

After arriving at the parking lot, the detective and Sanchez got out of their cars, whereupon Sanchez showed the detective a 9-millimeter handgun and transferred a black bag into the trunk of the detective’s car. At the detective’s request, Sanchez opened the bag. Inside was a box of Capri Sun and a carjack but no guns. No deal having been done, Sanchez removed the bag from the detective’s trunk, got back in the car with Jimenez and an unnamed woman, and they drove away.

But that was not the end of the matter. As part of a plan with the undercover NYPD purchaser, two agents from the Department of Alcohol, Tobacco, and Firearms ("ATF") had followed Jimenez’s car. After the sale did not occur, these agents ordered Jimenez to pull over several blocks from the parking lot. As the law enforcement officials approached the car, Sanchez removed a round from the chamber of his 9-millimeter handgun and handed it to Jimenez. The officials searched Jimenez’s car, found Sanchez’s weapon—which was loaded with 12 rounds of ammunition—and brought everybody to the ATF office in the Bronx for questioning. At the office, ATF agents patted down Jimenez and discovered the 9-millimeter round in his pocket.

Further investigation revealed that Jimenez had been dishonorably discharged from the Marines in 2012 after serving 18 months in a military prison for conspiracy to sell military property, wrongful disposition of military property, use and possession of a controlled substance, and conduct of a nature to bring discredit upon the armed forces, in violation of 10 U.S.C. §§ 881, 908, 912a, 934. He had been convicted of these offenses after confessing to using and dealing ecstasy and to possessing and selling firearms and night vision goggles that had been stolen from the military.

Federal law prohibits anybody who "has been discharged from the Armed Forces under dishonorable conditions" from possessing firearms or ammunition "in or affecting commerce." 18 U.S.C. § 922(g)(6). On July 6, 2015 Jimenez was arrested, and on July 28 he was indicted, for violating this law. In the district court, Jimenez filed a motion to dismiss the indictment challenging the constitutionality of Section 922(g)(6) under the Second Amendment. After the district court denied this motion, United States v. Jimenez , 15-cr-496, 2016 WL 8711451 (S.D.N.Y. June 3, 2016), he

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pled guilty pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, preserving his right to appeal the denial of his motion to dismiss. The district court sentenced him principally to three years’ supervised release and entered judgment on January 11, 2017. Jimenez filed a notice of appeal the next day.

DISCUSSION

I. The Nature of the Challenge

The sole question in front of us is whether Jimenez’s prosecution and conviction for possessing ammunition after having been dishonorably discharged violates the Second Amendment. Jimenez presents his argument as a facial challenge to the statute under which he was convicted, but it is not.

"When a defendant has already been convicted for specific conduct under the challenged law," we will "examine the complainant’s conduct before analyzing other hypothetical applications" of that law. United States v. Decastro , 682 F.3d 160, 163 (2d Cir. 2012) (internal quotation marks omitted); see also Kachalsky v. County of Westchester , 701 F.3d 81, 101 (2d Cir. 2012). If a defendant’s conviction presents constitutional problems, those problems may be with the face of the statute or they may pertain only to the application of the statute to certain situations. But if the statute is constitutionally applied to the defendant, we follow the principal that "[f]ederal courts may not decide questions that cannot affect the rights of litigants in the case before them or give opinions advising what the law would be upon a hypothetical state of facts." Chafin v. Chafin , 568 U.S. 165, 172, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) (alterations and quotation marks omitted). Contrary to Jimenez’s urgings, a defendant to whom a statute constitutionally applies has no standing to challenge the statute’s constitutionality as it applies to others differently situated. See United States v. Farhane , 634 F.3d 127, 138 (2d Cir. 2011). Because we find that Jimenez’s Second Amendment rights were not violated, we will not hear his arguments about alleged constitutional problems with other potential applications of the statute under which he was convicted. He has "necessarily failed to state a facial challenge." Decastro , 682 F.3d at 163 (internal punctuation omitted).

II. Evaluating Second Amendment Challenges

Since the Supreme Court announced that the Second Amendment protects an "individual right to possess and carry weapons in case of confrontation," District of Columbia v. Heller , 554 U.S. 570, 592, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), we have developed a two-step framework for determining whether legislation infringes on this right, see New York State Rifle & Pistol Association, Inc. v. Cuomo , 804 F.3d 242, 254–55 (2d Cir. 2015) (" NYSRP v. Cuomo "). First, "we must determine whether the challenged legislation impinges upon conduct protected by the Second Amendment." Id. at 254. Second, if we find that a law implicates the Second Amendment as Heller instructed us to interpret it, we determine the appropriate level of scrutiny to apply and evaluate the constitutionality of the law using that level of scrutiny. See id. at 257–58, 261. We review de novo a district court’s determination that the application of a law does not violate the Second Amendment. See New York State Rifle & Pistol Association, Inc. v. City of New York , 883 F.3d 45, 54 (2d Cir. 2018) (" NYSRP v. City ").

III. Step One: Whether the Second Amendment Applies to Jimenez

There is some reason to think the Second Amendment does not apply to Jimenez.

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As far as we can tell, no other federal appellate court in the post- Heller era has examined the ban we review today. But see United States v. Day , 476 F.2d 562, 568 (6th Cir. 1973) (before Heller , finding that 18 U.S.C. § 922(g)(6) complies with the Second Amendment). But precedent does provide some guidance. Heller instructed that its reading of the Second Amendment not "be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill" and other "presumptively lawful regulatory measures." 554 U.S. at 626, 627 n.26, 128 S.Ct. 2783. We have previously relied on this passage to uphold the federal ban on ex-felons’ access to firearms and ammunition. United States v. Bogle , 717 F.3d 281, 281–82 (2d Cir. 2013) ; see also United States v. Stuckey , 317 F. App'x 48, 50 (2d Cir. 2009) (a previous non-precedential summary order coming to the same conclusion). Heller also emphasized that not all gun regulations implicate the right it announced. See 554 U.S. at 595, 626, 128 S.Ct. 2783. The individual right that Heller found in the Second Amendment "protects only ‘the sorts of weapons’ that are (1) ‘in common use’ and (2) ‘typically possessed by law-abiding citizens¹ for lawful purposes.’ " NYSRP v. Cuomo , 804 F.3d at 254–55 (quoting Heller , 554 U.S. at 627, 625, 128 S.Ct. 2783 ). Applying this limitation, we have held that "the Second Amendment does not protect the unlawful purpose of possessing a firearm in...