USA v. Barber

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JAMES EDWARD BARBER,
Defendant.
Case No. 3:22-cr-00065-SLG-MMS
ORDER RE MOTION TO RECONSIDER DENIAL OF MOTION TO DISMISS
Before the Court at Docket 94 is Defendant James Barber’s Motion to
Reconsider Denial of Motion to Dismiss. Mr. Barber seeks reconsideration of the
Court’s order at Docket 58, which denied Mr. Barber’s Motion to Dismiss Pursuant
to New York Rifle and Pistol Association v. Bruen.
Mr. Barber brings his motion based on an “intervening change in the law”
pursuant to Local Rule 7.3(h)(1)(C) and identifies that “change in the law” as a
recent Third Circuit decision: Range v. Att’y Gen. United States.1 	In Range, the
Third Circuit made what it described as a “narrow” decision, holding that 18 U.S.C.
§ 922(g)(1) was unconstitutional as applied to the defendant, whose prior crime
was “making a false statement on an application for food stamps.”2 	The Range
court held that despite the defendant’s false statement conviction, the defendant
1 69 F.4th 96 (3d Cir. 2023) (en banc); Docket 94 at 2.
2 Range, 69 F.4th at 105-06.
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“remains one of ‘the people’ protected by the Second Amendment” and that “the
Government ha[d] not shown that the Nation’s historical tradition of firearms
regulation supports depriving [the defendant] of his Second Amendment right to
possess a firearm.”3 	Based on that decision, Mr. Barber urges the Court to
reconsider its order denying his motion to dismiss Count 1, Possession of a
Firearm by a Felon in violation of 18 U.S.C. § 922(g)(1).4
The Court notes that the Third Circuit’s decision in Range is narrow and not
controlling in this Circuit. Mr. Barber has not cited to any intervening Ninth Circuit
change in the law on the issue, and the Court is currently unaware of any.
Furthermore, even if the Court were to consider Range in this context, the Range
decision was on an as-applied basis, and Mr. Barber fails to assert how 18 U.S.C.
§ 922(g)(1) would be unconstitutional as applied to him, when his underlying
offenses were two convictions for second degree misconduct involving weapons.
In 	conclusion, 	Barber 	has 	not 	made 	the 	requisite 	showing 	to 	justify
reconsideration 	of 	the 	Court’s 	order. 	Reconsideration 	generally 	requires 	a
showing of “manifest error of the law or fact,” “discovery of new material facts not
previously available,” or an “intervening change in the law.”5 	Mr. Barber has not
3 Range, 69 F.4th at 106 (citing N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2126
(2022)).
4 Docket 94 at 5; Docket 41 at 1.
5 D. Alaska L. Civ. R. 7.3(h)(1).
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Case No. 3:22-cr-00065-SLG-MMS, USA v. Barber
Order re Motion to Reconsider Denial of Motion to Dismiss
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made a showing on any of the requirements and, accordingly, has not shown that
reconsideration is warranted.
In light of the foregoing, IT IS ORDERED that Defendant’s Motion to
Reconsider Denial of Motion to Dismiss at Docket 94 is DENIED.
DATED this 23rd day of June, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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