United States v. Trevino
| Docket Number | CR 2:23-cr-00066 RB |
| Decision Date | 28 November 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DELBERT TYLER TREVINO, Defendant. |
| Court | U.S. District Court — District of New Mexico |
In 1961, Congress banned persons “under indictment for a crime punishable by imprisonment for a term exceeding one year” from receiving firearms or ammunition that have traveled in interstate commerce. 18 U.S.C. § 922(n). On June 21, 2023, the United States filed a superseding indictment charging Defendant Delbert Tyler Trevino, who was under indictment for purposes of the statute, with two counts of receiving firearms and ammunition pursuant to § 922(n). Trevino moves to the dismiss the superseding indictment on the basis that § 922(n) is unconstitutional under the framework instituted by the United States Supreme Court in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 F. Ct. 2111 (2022). (Doc. 51.)
Having examined § 922(n) under the Bruen standard, the Court finds that while Trevino may be part of the class of citizens whom the Second Amendment covers, the Government meets its burden to show that § 922(n) is consistent with our country's historical tradition of firearms regulation and, therefore, does not violate the Second Amendment. The Court DENIES Trevino's motion to dismiss.
On November 12, 2020, Trevino was indicted in a Texas state court on three counts: theft of property; fraud; and possession of a controlled substance. (See Doc 55-1.) On January 19, 2022, Trevino pleaded guilty, and the court entered an Order of Deferred Adjudication on the three felony charges. (See Doc. 55-2.) “In Texas deferred adjudication permits a defendant to accept responsibility for a crime without an actual conviction.” (Doc. 55 at 2.) “If a defendant successfully completes the terms and conditions of ‘community supervision' (i.e., probation), then the defendant's case [is] dismissed” without the blight of a felony conviction on their record. (See id.)
According to the Order of Deferred Adjudication, Trevino was not allowed to “possess or transport any type of firearm, prohibited weapon, or body armor.” (See Doc. 55-2 at 8.) Thus, the El Paso Police Department (EPPD) seized Trevino's firearms. (See Doc. 55 at 2.) On June 6, 2022, while he was still on deferred adjudication, Trevino went to “the EPPD and demanded the return of his firearms on the basis that he was not a convicted felon.” (Id. at 2-3.) The EPPD returned the firearms to Trevino. (See id. at 3.)
The Government asserts that on July 22, 2022, Trevino “purchased, and thus received,” ammunition from a store in Las Cruces, New Mexico. (Id.) “On September 2, 2022, in connection with a homicide investigation,” authorities executed search warrants on Trevino's residence and vehicle. (See id.) Officers recovered the firearms Trevino received from the EPPD and the ammunition he purchased in Las Cruces. (Id.) Consequently, the United States charged Trevino with, inter alia,[2] illegal receipt of firearms and of ammunition by a person under indictment in violation of 18 U.S.C. §§ 922(n) and 924(a)(1)(D). (Doc. 39.) Trevino now moves to dismiss the charges on the basis that § 922(n) violates the Second Amendment. (Doc. 51.)
Federal Rule of Criminal Procedure 12(b)(1) allows parties to “raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” The Court may entertain a motion to dismiss under Rule 12(b)(1) “that require[s] it to answer only pure questions of law.” See United States v. Pope, 613 F.3d 1255, 1260 (10th Cir. 2010) (citations omitted). Trevino's constitutional challenge is appropriately raised in a motion to dismiss because the Court may decide the question without considering any issues of fact. See id.
Trevino summarily asserts that § 922(n) is invalid both facially and as applied to him. (See Doc. 51 at 10, 19.) A facial challenge requires “the challenger [to] establish that no set of circumstances exists under which the [law] would be valid.” See United States v. Salerno, 481 U.S. 739, 745 (1987). “In contrast, an as-applied challenge may concede that the statute is generally constitutional in most of its applications, but asserts that the statute is unconstitutional under the particular case's circumstances.” United States v. Streett, 434 F.Supp.3d 1125, 1149 n.15 (D.N.M. 2020), aff'd, 83 F.4th 842 (10th Cir. 2023) (citation omitted).
At issue here is the constitutionality of 18 U.S.C. § 922(n), which makes it “unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to . . . receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”[3] Trevino argues that, given the new standard announced in Bruen, § 922(n) violates the Second Amendment. (Doc. 51.)
The Second Amendment provides that “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, 554 U.S. 570, 635 (2008), the Supreme Court affirmed “that ‘the people,' not just members of the ‘militia,' have the right to use a firearm to defend themselves.” See Bruen, 142 S.Ct. at 2157 (Alito, J., concurring) (). Specifically, the Heller court opined that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S. at 635. In McDonald v. Chicago, 561 U.S. 742, 750 (2010), the Supreme Court held that the same Second Amendment right applies to the States. Following Heller and McDonald, courts employed “a ‘two-step' framework for analyzing Second Amendment challenges that combine[d] history with means-end scrutiny.” See Bruen, 142 S.Ct. at 2125; see also, e.g., United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010), abrogated by Bruen, 142 S.Ct. 2111 () (citations omitted). That approach required courts to first “ask[] whether the challenged law impose[d] a burden on conduct falling within the scope of the Second Amendment's guarantee.” See Reese, 627 F.3d at 800 (quotation omitted). “If the government [could] prove that the regulated conduct [fell] beyond the Amendment's original scope, then” the regulation was constitutional. See Bruen, 142 S.Ct. at 2126 (citation omitted). If the conduct fell within the scope of the Second Amendment, courts applied means-end scrutiny to determine whether the regulation was constitutional. See id.
In Bruen, the Court held as violative of the Second Amendment a New York law that conditioned issuance of a concealed-carry permit on an individual's showing of a “special need for self-defense ” See id. at 2122. The Supreme Court decided the two-step framework and means-end scrutiny test that arose post-Heller was “one step too many.” See id. at 2127. The Court held that the first step, “which demands a test rooted in the Second Amendment's text, as informed by history[,]” is still acceptable. See id. At the newly adopted second step, however, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id.
Although Bruen expanded our understanding of citizens' Second Amendment rights to include the right to possess firearms outside one's home, the majority seemingly took care not to disturb other “restrictions that may be imposed on the possession or carrying of guns.” See id. at 2157 (Alito, J., concurring). For example, the Tenth Circuit recently observed that Bruen “didn't appear to question the constitutionality of longstanding prohibitions on possession of firearms by convicted felons.” Vincent v. Garland, 80 F.4th 1197, 1201 (10th Cir. 2023). The Vincent court pointed out that “Bruen apparently approved the constitutionality of regulations requiring criminal background checks before applicants could get gun permits[,]” as the Bruen Court observed that firearms “‘applicants [must often] undergo a background check' to ensure that the applicant is a ‘law-abiding, responsible citizen[].'” Id. at 1201-02 (quoting Bruen, 142 S.Ct. at 2138 n.9).
It is against this backdrop that the Court examines Trevino's challenge to § 922(n). Trevino asserts that his conduct-receipt of firearms-is covered by the plain text of the Second Amendment. (Doc. 51 at 10.) He further argues that the United States cannot establish that § 922(n) is consistent with our “Nation's historical tradition of firearm regulation.” (Id. at 17 (quoting Bruen, 142 S.Ct. at 2126).)
As outlined below, the Court answers the first question in the affirmative: the plain text of the Second Amendment covers Trevino's conduct. Turning to the second question, the Court holds the Government meets its burden to demonstrate that the statute is consistent with historical analogues. Consequently, the Court declines to find that § 922(n) violates the Second Amendment. In reaching this conclusion the Court joins the substantial majority of courts that have, since Bruen, found § 922(n) withstands constitutional scrutiny. See, e.g., United States v. Posada, ___ F.Supp.3d ___, 2023 WL 3027877 (W.D. Tex. Apr. 20, 2023); United States v. Jackson, ___ F.Supp.3d ___, 2023 WL 2499856 ; United States v. Bartucci, ___ F.Supp.3d ___, 2023 WL 2189530 (E.D. Cal. Feb. 23, 2023); United States v. Simien, ___ F.Supp.3d ___, 2023 WL 1980487 (W.D. Tex. Feb. 10, 2023); United States v. Rowson, 652 F.Supp.3d 436 (S.D.N.Y. 2023); United...
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