USA v. Cleveland-McMichael

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
THOMAS CLEVELAND-
MCMICHAEL,
Defendant.
Case No. 3:21-cr-00119-SLG
ORDER RE MOTION TO DISMISS THE INDICTMENT
Before the Court at Docket 78 is Defendant Cleveland-McMichael’s Motion
to Dismiss the Indictment. The Government responded in opposition to the motion
at Docket 86.
In 2018, Mr. Cleveland-McMichael was convicted of an offense in violation
of 18 U.S.C. § 922(g)(3).1 Mr. Cleveland-McMichael now seeks an order
dismissing the Indictment in this case, which charges him with being a Felon in
Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), in
light of the Supreme Court’s recent decision in New York State Rifle & Pistol
Association v. Bruen.2 In Bruen, the Supreme Court held that,
when the Second Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects that conduct. To
justify its regulation, the government may not simply posit that the
1 See United States v. Cleveland-McMichael, 3:17-cr-00161, Docket 18 (D. Alaska April 5, 2018).
2 142 S. Ct. 2111, 2126 (2022).
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regulation promotes an important interest. Rather, the government
must demonstrate that the regulation is consistent with this Nation’s
historical tradition of firearm regulation.3
Mr. Cleveland-McMichael makes both a facial and an as-applied challenge to 18
U.S.C. § 922(g)(1), asserting that the statute burdens his Second Amendment right
to keep and bear arms.4 According to Mr. Cleveland-McMichael, “the Government
cannot carry its burden of demonstrating that Section 922(g)(1)’s application to Mr.
Cleveland-McMichael’s conduct is consistent with this nation’s historical tradition
of firearm regulation at the founding.”5 He also asserts that the statute that formed
the basis for his prior felony conviction, 18 U.S.C. § 922(g)(3), is unconstitutional
in light of Bruen and “cannot support a firearms prohibition pursuant to 18 U.S.C.
§ 922(g)(1).” In addition, he maintains it is unconstitutionally vague. Therefore,
he maintains, the Indictment must be dismissed.6
As to the § 922(g)(1) charge, the Government responds that Ninth Circuit
precedent, which holds that felon-in-possession statutes do not violate the Second
Amendment, “has not been overruled by an en banc court or the Supreme Court.”7
And the Government asserts that “the historical record supports the conclusion
3 Id.
4 Docket 78 at 2.
5 Docket 78 at 3.
6 Docket 78 at 2–3.
7 Docket 86 at 4 (citing United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010)).
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that felons are not entitled to Second Amendment protection.”8 With respect to the
§ 922(g)(3) charge, the Government responds that Mr. Cleveland-McMichael’s
collateral attack is untimely and legally barred, and that § 922(g)(3) is neither
unconstitutional in the wake of Bruen nor unconstitutionally vague.9
I. Second Amendment jurisprudence prior to Bruen
The Second Amendment provides that “[a] well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.”10 Like other constitutionally protected rights, the right
to bear arms is “subject to certain reasonable, well-defined restrictions.”11 In other
words, “[l]ike most rights, the right secured by the Second Amendment is not
unlimited.”12 Limitations on the Second Amendment were recognized prior to
Bruen; as relevant here, the Supreme Court and the Ninth Circuit have consistently
acknowledged that the Second Amendment’s protections do not extend to the
possession of firearms by felons.
In District of Columbia v. Heller, the Supreme Court extensively reviewed
the pre- and post-Second Amendment history of firearms rights in the United
States. The Supreme Court held that Washington, D.C.’s ban on handgun
8 Docket 86 at 7.
9 Docket 86 at 14-29.
10 U.S. Const. amend. II.
11 Bruen, 142 S. Ct. at 2156 (citing District of Columbia v. Heller, 554 U.S. 570, 581 (2008)).
12 Heller, 554 U.S. at 626.
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possession within the home violated the Second Amendment.13 In so holding, the
Supreme Court emphasized that “nothing in our opinion should be taken to cast
doubt on longstanding prohibitions on the possession of firearms by felons.”14 The
Supreme Court stated that the prohibition on the possession of firearms by felons
was “presumptively lawful.”15 Two years later, in McDonald v. City of Chicago, the
Supreme Court explained that “[w]e made it clear in Heller that our holding did not
cast doubt on such longstanding regulatory measures as ‘prohibitions on the
possession of firearms by felons . . . .’”16
The Ninth Circuit has relied on Heller and McDonald to uphold the
constitutionality of § 922(g)(1). In United States v. Vongxay, the Circuit held that
Ҥ 922(g)(1) does not violate the Second Amendment as it applies to Vongxay, a
convicted felon.”17 The Circuit recognized that “the historical question has not
been definitively resolved,” but noted that “most scholars of the Second
Amendment agree that the right to bear arms was ‘inextricably . . . tied to’ the
concept of a ‘virtuous citizen[ry]’ that would protect society through ‘defensive use
of arms against criminals, oppressive officials, and foreign enemies alike,’ and that
‘the right to bear arms does not preclude laws disarming the unvirtuous citizens
13 Id. at 635.
14 Id. at 626.
15 Id. at 626 n.26.
16 561 U.S. 742, 786 (2010) (quoting Heller, 554 U.S. at 626–27).
17 594 F.3d 1111, 1118 (9th Cir. 2010).
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(i.e. criminals).’”18 In Van Der Hule v. Holder, the Circuit held that “§ 922(g)(1)
continues to pass constitutional muster.”19 In United States v. Phillips, the Ninth
Circuit stated that “under Supreme Court precedent and our own,” the court “must”
“assum[e] the propriety of felon firearm bans.”20
Prior to Bruen, other circuits also recognized that federal statutes
criminalizing felons possessing firearms do not violate the Second Amendment.
After Heller, the Courts of Appeals have unanimously upheld the constitutionality
of § 922(g)(1) against facial attacks.21
II. The Bruen framework
After Heller, many circuits used a two-step test when considering whether a
statute or regulation comported with the Second Amendment.22 In Bruen,
however, the Supreme Court held that the two-step test was “one step too many”23
and instead announced a single-step analysis:
when the Second Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects that conduct. To
justify its regulation, the government may not simply posit that the
regulation promotes an important interest. Rather, the government
18 Id. at 1118 (alterations in original) (quoting Don B. Kates, Jr., The Second Amendment: A
Dialogue, 49 L. & Contemp. Probs. 143, 146 (1986) (citations omitted); see also id. at 1117 (stating
that “[f]elons are often, and historically have been, explicitly prohibited from militia duty”) (citation
omitted).
19 759 F.3d 1043, 1051 (9th Cir. 2014).
20 827 F.3d 1171, 1175 (9th Cir. 2016).
21 See, e.g., United States v. Bogle, 717 F.3d 281, 282 n.1 (2d Cir. 2013) (collecting cases).
22 See Bruen, 142 S. Ct. at 2126–27 for a discussion of the two-step analysis.
23 Id. at 2127.
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must demonstrate that the regulation is consistent with this Nation’s
historical tradition of firearm regulation.24
Despite this change in the Second Amendment analytical framework, nothing in
Bruen indicates that the Supreme Court has repudiated its earlier pronouncements
that the Second Amendment’s protections do not extend to felons. The Bruen
Court explained that Heller does not support the two-step means-ends scrutiny
applied by the circuit courts,25 but it did not alter Heller’s statement that the
prohibition of firearms by felons is “longstanding” and “presumptively lawful.”26
Indeed, the Bruen majority noted that its holding is “in keeping with Heller.”27
Justice Kavanaugh, joined by Chief Justice Roberts, stated that Bruen does not
disturb what the Court said in Heller about the restrictions imposed on possessing
firearms, namely the “longstanding prohibitions on the possession of firearms by
felons.”28 Justice Alito stated in his concurrence: “Nor have we disturbed anything
that we said in Heller or McDonald . . . .”29 Justice Breyer, joined by Justices Kagan
24 Id. at 2126.
25 Id. at 2127.
26 See United States v. Ingram, No. 0:18-557-MGL-3, 2022 WL 3691350, at *2 (D.S.C. Aug. 25,
2022) (“The Court agrees with the government that Bruen clarified and ‘reiterated[,]’ rather than
modified, the constitutional ruling in Heller.”).
27 561 U.S. at 2126.
28 Bruen, 142 S. Ct. at 2162 (Kavanaugh, J., concurring) (citation omitted).
29 Id. at 2157 (Alito, J., concurring).
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and Sotomayor, stated that Bruen “cast[s] no doubt on” Heller's treatment of laws
prohibiting firearms possession by felons.30
As of December 2022, only one circuit court had considered a post-Bruen
challenge to the constitutionality of Section 922(g)(1); it held that the statute was
constitutional. However, that circuit decision has since been vacated and a petition
for rehearing en banc has been granted.31 The Government lists over 100 district
court cases in its brief that it indicates have each upheld the statute’s continuing
validity post-Bruen.32 In United States v. Hill, the Southern District of California
concluded that “the reasoning of Vongxay and Heller—on which Vongxay relies—
are not ‘clearly irreconcilable with the reasoning or theory’ of Bruen. Accordingly,
Bruen did not ‘effectively overrule’ Vongxay and this Court is bound by Vongxay
and its progeny.”33 In United States v. Siddoway, the District of Idaho concluded
that “[t]he Ninth Circuit’s reasoning in Vongxay is consistent with that critical
second prong. The court determined that ‘[o]ur examination . . . of historical gun
30 Id. at 2189 (Breyer, J., dissenting).
31 Range v. Att’y Gen. United States, 53 F.4th 262 (3d Cir. 2022) (per curiam), reh’g en banc
granted, opinion vacated, 56 F.4th 992 (3d Cir. 2023). See also United States v. Rahimi, 61 F.4th
443 (5th Cir. Mar. 2, 2023) (The Fifth Circuit Court of Appeals held that § 922(g)(8), prohibiting
possession of firearms by someone subject to domestic violence restraining order, violates the
Second Amendment.), petition for cert. docketed (U.S. Mar. 21, 2023) (No. 22-915).
32 Docket 86 at 11-13 n.2.
33 Case No. 21cr107 WQH, 2022 WL 4361917, at *3 (S.D. Cal. Sept. 20, 2022) (quoting Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003)). The District Court was also “persuaded by the
historical analysis performed by the Court of Appeals for the D.C. Circuit in Medina v. Whitaker,
913 F.3d 152, 158–60 (D.C. Cir. 2019), which ‘look[ed] to tradition and history’ and concluded that
‘the historical evidence and the Supreme Court’s discussion of felon disarmament laws leads us
to reject the argument that non-dangerous felons have a right to bear arms.’” Id.
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restrictions . . . lends credence to the post-Heller viability’ of the previous
determination that 18 U.S.C. § 922(g)(1) does not violate the Second
Amendment.”34 The District of Idaho concluded that it was thus bound by
Vongxay.35 This Court has not identified any district court in the Ninth Circuit that
has found the federal felon in possession statute to be unconstitutional when
applying the analytical framework set forth in Bruen. Accordingly, the motion to
dismiss the indictment on this basis is denied.
Mr. Cleveland-McMichael also asserts that his prior felony conviction under
18 U.S.C. § 922(g)(3) is invalid because that statute is unconstitutional. This
statute criminalizes the possession of a firearm by drug users and addicts. He
points to a recent decision from the Western District of Oklahoma that determined
that the statute violated the defendant’s Second Amendment rights in the wake of
Bruen.36 He also asserts that the statute is unconstitutionally vague because it
“fails to define what it means to be an addict, or one who unlawfully uses a
controlled substance.”37 For this proposition, he cites to a recent decision from the
District Court in Utah that held that Ҥ 922(g)(3) is unconstitutionally vague both
34 Case No. 1:21-cr-00205-BLW, 2022 WL 4482739, at *2 (D. Idaho Sept. 27, 2022) (alterations
and omissions in original) (quoting Vongxay, 594 F.3d at 1116).
35 Id.
36 Docket 78 at 31-32 (citing United States v. Harrison, 5:22-cr-00328-PRW, 2023 WL 1771138
(W.D. Okla. Feb 3, 2023) (district court concluded that Harrison’s “mere status as a user of
marijuana” was “not a constitutionally permissible means of disarming Harrison” under 18 U.S.C.
§ 922(g)(3)), appeal filed, Case No. 23-6028 (10th Cir. March 3, 2023).
37 Docket 78 at 32.
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because it fails to give ordinary people fair notice of what conduct it prohibits and
because it invites courts, rather than the legislature, to decide what constitutes a
crime.”38
The Government responds that Mr. Cleveland-McMichael’s collateral attack
on the predicate felony conviction under § 922(g)(3) is legally barred. And if the
Court were to reach the merits on the validity of that statute, the Government
maintains this statute is constitutional under Bruen and not fatally vague.39
The Court finds that Mr. Cleveland-McMichael is precluded from challenging
the validity of the predicate felony offense at this time. In the § 922(g)(3) plea
agreement in the 2018 case, Mr. Cleveland-McMichael expressly waived his right
to collaterally attack the constitutional validity of that statute.40 Moreover, the
Supreme Court has held that § 922(g)(1) precludes a felon from possessing a
firearm “despite the fact that the predicate felony may be subject to collateral attack
on constitutional grounds.”41 Based on the foregoing, even if § 922(g)(3) were
38 Docket 78 at 33 (quoting United States v. Morales-Lopez, 2:20-cr-00027-JNP, 2022 WL
2355920, at *8 (D. Utah June 30, 2022)), appeal filed, Case No. 22-4074 (10th Cir. August 1,
2022).
39 Docket 86 at 14.
40 See United States v. Cleveland-McMichael, 3:17-cr-00161, Docket 18 (D. Alaska April 5, 2018)
at 2, 10-11.
41 Lewis v. United States, 445 U.S. 55, 64–65 (1980) (Although the Supreme Court considered a
challenge to § 1202(a)(1), it noted that § 922(g)(1) “impose[s] a disability not only on a convicted
felon but also on a person under a felony indictment, even if that person subsequently is acquitted
of the felony charge.”); see also U.S. v. Padilla, 387 F.3d 1087, 1090–91 (9th Cir. 2004).
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constitutionally infirm, a question which this Court need not and does reach, that
would not serve as a basis to dismiss the current charge.
CONCLUSION
The Court finds that the Supreme Court’s previous emphasis on the validity
of prohibitions on the possession of firearms by felons continues after Bruen.
Because 18 U.S.C. § 922(g)(1) criminalizes the possession of firearms by felons,
this Court determines that the statute would be upheld by the Supreme Court using
the interpretation method pronounced in Bruen. The Court further finds that Mr.
Cleveland-McMichael is precluded from raising a collateral challenge to the
predicate felony conviction under 18 U.S.C. § 922(g)(3) in this proceeding. For
these reasons, the motion at Docket 78 is DENIED.
IT IS SO ORDERED.
DATED this 23rd day of March, 2023 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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