US v. Phetchanphone

• Decision Date: 30 September 1994
• Docket Number: No. 94-CR-67S.,94-CR-67S.
• Citation: 863 F. Supp. 1543
• Parties: UNITED STATES of America, Plaintiff, v. Keooudone PHETCHANPHONE.
• Court: U.S. District Court — District of Utah

863 F. Supp. 1543

UNITED STATES of America, Plaintiff, v. Keooudone PHETCHANPHONE.

No. 94-CR-67S.

United States District Court, D. Utah, Central Division.

September 30, 1994.

Richard N.W. Lambert, Asst. U.S. Atty., U.S. Attys. Office, Salt Lake City, UT, for plaintiff.

Robert M. Archuleta, Salt Lake City, UT, for defendant.

ORDER

SAM, District Judge.

The defendant, Keooudone Phetchanphone, made a motion to dismiss the indictment. The matter was referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). The magistrate judge made two reports and recommendations that the motion be denied. No objection has been taken to the reports and recommendations. The court has reviewed the file and hereby adopts the reports and recommendations of the magistrate judge. Therefore,

IT IS HEREBY ORDERED that the motion of defendant Keooudone Phetchanphone to dismiss the indictment is denied.

REPORT & RECOMMENDATION

BOYCE, United States Magistrate Judge.

The defendant, Keooudone Phetchanphone, made a motion to dismiss the indictment against him charging him with a violation of 18 U.S.C. § 922(g), felon in possession of a firearm. The magistrate judge made a report and recommendation on June 22, 1994 that the defendant's motion be denied. The original motion of defendant to dismiss was based on a claim that defendant's civil rights had been restored within the meaning of 18 U.S.C. § 921(a)(20) and that defendant could lawfully possess a firearm without violating 18 U.S.C. § 922(g). The report and recommendation concluded there had been no restoration of rights because defendant did not meet the requisite standards for restoration of rights set forth in United States v. Maines, 20 F.3d 1102 (10th Cir.1994) (File Entry # 21).

On July 6, 1994 the defendant and the prosecution made a joint motion to the district court to recommit the case to the magistrate judge. (File Entry # 22). The joint motion suggested that because the defendant was a resident alien and could not qualify for the restoration of rights provision under 18 U.S.C. § 921(a)(20), which may determine whether an offense has been committed within 18 U.S.C. § 922(g), that § 921(a)(20) law was being unconstitutionally applied to the defendant in violation of the equal protection portion of the due process clause of the Fifth Amendment.

The case was recommitted to the magistrate judge on July 5, 1994. (File Entry # 23). The case has been referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). This report and recommendation is submitted on the defendant's motion to dismiss. On July 8, 1994 the defendant made a motion for reconsideration of dismissal of the indictment. (File Entry # 24). The motion recited as a basis for relief that 18 U.S.C. § 922(g)(1) is unconstitutional as applied to defendant. The defendant observes that 18 U.S.C. § 922(g)(1) prohibits a person convicted of a crime punishable in excess of one year from possessing a firearm. However, § 921(a)(20) excludes from the prohibited conduct a conviction of a person whose civil rights have been restored. The defendant contends he is denied the restoration of rights benefit of 18 U.S.C. § 921(a)(20) because of the provisions of Utah law and he is, therefore, denied equal protection of the law. The defendant argues that "all resident aliens who are felons, regardless of the jurisdiction of their convictions, are subject to treatment unequal to that received by similarly situated citizens who are felons." (File Entry # 24, p. 4). The defendant has offered no proof that "all resident aliens" in all jurisdictions are ineligible for the restoration of rights exclusion under § 921(a)(20). Further, the prior report of the magistrate judge noted that in United States v. Hall, 20 F.3d 1066 (10th Cir.,1994) and United States v. Maines, 20 F.3d 1102 (10th Cir.,1994) it had been concluded that state law determines the question of whether there has been a restoration of rights. Therefore, before it could be such that "all resident aliens" were denied the benefit of the restoration of rights provision, it would have to be shown that such is the applicable circumstance in all fifty states. Nothing in the wording in 18 U.S.C. § 922(g) or § 921(a)(20) expressly, or by other specific classification, prohibits resident aliens from being eligible for the restoration of rights provision. Further, it must be observed that 18 U.S.C. § 921(a)(20) does not limit the relief afforded by that section only to persons in instances in which civil rights have been restored, but also recognizes alternative circumstances — pardon or expungement.¹ The defendant did not pursue either of the mentioned alternatives.

In order for the defendant to prevail he may not show discrimination against someone else. He must base his claim on his own legal injury. U.S. v. Vigil, 743 F.2d 751 (10th Cir.,1984). The Supreme Court in Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830 (1973) said:

"Embedded in the traditional rules governing constitutional adjudication is 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." (citing cases)

A federal court will not entertain hypothetical questions not applicable to the defendant. In U.S. v. Mendes, 912 F.2d 434 (10th Cir.,1990) the court said:

"Two more recent Supreme Court decisions, County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), and Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), elaborate on the principle stated in U.S. v. Raines , 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). The Allen Court stated: `A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations. A limited exception has been recognized for statutes that broadly prohibit speech protected by the First Amendment.'"

See also Brecheisen v. Mondragon, 833 F.2d 238 (10th Cir.,1987) and I.N.S. v. Legalization Assistance Project of Los Angeles County Federation of Labor, ___ U.S. ___, 114 S.Ct. 422, 126 L.Ed.2d 410 (1993).

Consequently, the question is whether this defendant, as a resident alien, has been denied some federal constitutional right by the application of statute. In this case, because whether a violation of 18 U.S.C. § 922(g) has occurred involves a question of state law under 18 U.S.C. § 921(a)(20), the issue is whether defendant is denied equal protection as a resident of the State of Utah against other Utah residents. See Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 3326, 82 L.Ed.2d 556 (1984) ("Standing exists as to persons who are personally denied equal treatment.")

The defendant properly argues that the Fifth Amendment embodies the equal protection concept of the Fourteenth Amendment. Lewis v. U.S., 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228 n. 2, 43 L.Ed.2d 514 (1975); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954); U.S. v. Phelps, 17 F.3d 1334, 1342, n. 2 (10th Cir.,1994); U.S. v. Austin, 981 F.2d 1163, 1166 (10th Cir.,1992). However, this does not mean that the same equal protection standards apply to the federal government as may be applicable to a state. The Congress, because of its defined powers, may make classifications in certain areas that would not be allowed to the states. Specifically in the area of alienage, the federal government may make distinctions and classifications not sanctioned under state authority. Hampton v. Mow Sun Wong, 426 U.S. 88, 96, 96 S.Ct. 1895, 1902, 48 L.Ed.2d 495 (1976) ("... the Fourteenth Amendment's restrictions on State power are not directly applicable to the federal government ..."); Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) ("The fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not lead to further conclusion that all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogenous legal classification." "... The fact that an Act of Congress treats aliens differently from citizens does not itself imply that such disparate treatment is `invidious'.")

The restrictions that may be imposed on aliens by a state are limited. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Graham v. Richardson, 403 U.S. 365, 372-73, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971). However Congress has constitutional authority over immigration that affords greater authority to make alienage classifications. Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50 (1977) ("`Over no conceivable subject is the legislative power of Congress more complete than it is' over the administration of aliens.") Referencing Oceanic Steam Nav. Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909). Aliens "in several respects stand on equal footing with citizens ... it is a matter of permission and tolerance." Harisiades v. Shaughnessy, 342 U.S. 580, 586-87, 72 S.Ct. 512, 517, 96 L.Ed. 586 (1952). Recently in Plyler v. Doe, 457 U.S. 202, 219, n. 19, 102 S.Ct. 2382, 2395, n. 19, 72 L.Ed.2d 786 (1982) the Court said:

"With respect to the actions of the Federal Government, alienage classifications may be intimately related to the conduct of foreign policy, to the federal prerogative to control access to the United States, and to the plenary federal power to

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