Opinion
CR22-0028JLR
04-09-2024
UNITED STATES OF AMERICA, Plaintiff, v. CUONG QUOC CAO, Defendant.
ORDER
JAMES L. ROBART, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
On April 2, 2024, the court denied Defendant Cuong Quoc Cao's motions to dismiss count 3 of the indictment under (1) the Commerce Clause (1st MTD (Dkt. # 25)), and (2) the Second Amendment (2d MTD (Dkt. # 27)). (4/2/24 Order (Dkt. # 62).) The court advised that “[a] written order setting forth the court's analysis will follow.” (Id. at 2.) The court now provides its analysis, beginning with the relevant factual and procedural background.
II. BACKGROUND
On February 16, 2022, the Seattle Police Department arrested Mr. Cao in connection with suspected drug trafficking crimes. (Suppress Mot. (Dkt. # 30) at 1 n.1, Ex. 1 at 1-2, 4.) In searching Mr. Cao and his effects, police recovered various illicit substances, drug paraphernalia, and a semi-automatic handgun. (Id. at 4-5, 9.) A records search revealed that Mr. Cao had a prior felony conviction. (Id. at 5.) Specifically, Mr. Cao had been convicted of violating Washington's Uniform Controlled Substances Act for delivery of cocaine in October 2010. (2d Resp. (Dkt. # 39) at 4 & Ex. 1 (Dkt. # 41 (sealed)) at 1.)
Mr. Cao stands charged with one count of possession of a controlled substance with intent to distribute (count 1), one count of possession of a firearm in furtherance of a drug trafficking crime (count 2), and one count of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (count 3). (Indictment (Dkt. # 1) at 1-2.) On March 7, 2024, Mr. Cao filed the two instant motions to dismiss count 3 of the indictment, bringing constitutional challenges to Section 922(g)(1) under the Commerce Clause and the Second Amendment, respectively. (See generally 1st MTD; 2d MTD; see also 1st Reply (Dkt. # 46); 2d Reply (Dkt. # 53).) Plaintiff the United States of America (the “Government”) timely filed opposition briefs. (1st Resp. (Dkt. # 37); 2d Resp.; see also Surreply (Dkt. # 58).) The court denied Mr. Cao's motions to dismiss on April 2, 2024. (See generally 4/2/24 Order.) This order follows.
III. ANALYSIS
Section 922(g)(1), also known as the felon in possession statute, makes it
unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which was been shipped or transported in interstate or foreign commerce.18 U.S.C. § 922(g)(1).
This court is mindful of the Supreme Court's pronouncement that “[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” United States v. Morrison, 529 U.S. 598, 607 (2000). Because Mr. Cao fails to make the requisite showings, the court denies his motions to dismiss.
A. Commerce Clause
The Commerce Clause grants Congress the power to regulate commerce “among the several States.” U.S. Const. art. I, § 8, cl. 3. Mr. Cao argues that Congress exceeded this power in enacting Section 922(g)(1), but as Mr. Cao acknowledges, his argument is foreclosed by binding precedent. (See 1st MTD at 3 n.1.)
In Scarborough v. United States, the Supreme Court upheld Section 922(g)(1)'s predecessor against a Commerce Clause challenge, concluding the statute passed muster because it contained “the minimal nexus that the firearm have been, at some time, in interstate commerce.” 431 U.S. 563, 575 (1977). The Ninth Circuit has consistently invoked Scarborough and its progeny in rejecting similar challenges to the amended Section 922(g)(1). See United States v. Sherbondy, 865 F.2d 996, 1000-01 (9th Cir. 1988); United States v. Hanna, 55 F.3d 1456, 1461-62 (9th Cir. 1995); United States v. Polanco, 93 F.3d 555, 563 (9th Cir. 1996); United States v. Rousseau, 257 F.3d 925, 932 (9th Cir. 2001); United States v. Davis, 242 F.3d 1162, 1162-63 (9th Cir. 2001) (per curiam).
Mr. Cao suggests that the Supreme Court's evolving Commerce Clause jurisprudence renders Scarborough obsolete (see 1st MTD at 3-8), but the Ninth Circuit expressly rejected this argument in United States v. Alderman, 565 F.3d 641 (9th Cir. 2009). At issue in Alderman was the constitutionality of 18 U.S.C. §§ 931 and 921(a)(35), which proscribe the possession by a felon of body armor that has been sold or offered for sale in interstate commerce. Id. at 642-43. The Alderman court traced the Supreme Court's “shifting emphasis in its Commerce Clause jurisprudence,” recognizing that modern cases impose more stringent jurisdictional standards than historical cases. Id. at 646-48 (first citing United States v. Lopez, 514 U.S. 549, 558-59 (1995) (carving three categories of commercial activities that Congress may constitutionally regulate, including “those activities that substantially affect interstate commerce”); and then citing United States v. Morrison, 529 U.S. 598, 611-13 (2000) (establishing four-part test for determining whether an activity substantially affects interstate commerce, including whether any “express jurisdictional element” is present)). Notwithstanding Lopez and Morrison, however, the Ninth Circuit determined it remained bound by Scarborough. Id. at 648 (“[U]ntil the Supreme Court tells us otherwise . . . we [must] follow Scarborough unwaveringly.” (quoting United States v. Cortes, 299 F.3d 1030, 1037 n.2 (9th Cir. 2002))). Because the Supreme Court had “blessed” “a nearly identical jurisdictional hook” in Scarborough, a “careful parsing of post-Lopez case law” was not required to uphold Congress's prohibition on the possession of body armor by convicted felons. Id.
Mr. Cao also argues that Scarborough was incorrectly decided (see 1st MTD at 9-11), but it is not this court's role to question the wisdom of binding authority.
Accordingly, Lopez and Morrison do not change the calculus. Consistent with a long line of Ninth Circuit precedent reaffirming Scarborough and the constitutionality of Section 922(g)(1), the court denies Mr. Cao's motion to dismiss count 3 of the indictment under the Commerce Clause. See, e.g., Alderman, 565 F.3d at 648; Davis, 242 F.3d at 1162-63. “Any doctrinal inconsistency between Scarborough and the Supreme Court's more recent decisions is not for this Court to remedy.” Alderman, 565 F.3d at 648 (quoting United States v. Patton, 451 F.3d 615, 636 (10th Cir. 2006)).
B. Second Amendment
The Second Amendment “protect[s] an individual right to keep and bear arms for self-defense.” N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 17 (2022); see also U.S. Const. amend. II. This right was first recognized as an individual one in District of Columbia v. Heller, 554 U.S. 570, 595 (2008). The Supreme Court recently expanded upon Heller in Bruen, setting forth a new framework for determining whether a gun regulation violates an individual's Second Amendment right to bear arms. See Bruen, 597 U.S. at 24.
Mr. Cao now argues that Section 922(g)(1) fails the Bruen framework and that count 3 must be dismissed as a result. (See generally 2d MTD.) The Government responds that Bruen left undisturbed controlling Ninth Circuit authority that holds “felons are categorically different from the individuals who have a fundamental right to bear arms.” (2d Resp. at 1-2 (quoting United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010) (rejecting pre-Bruen Second Amendment challenge to Section 922(g)(1))).). This court may only depart from controlling Ninth Circuit authority in favor of intervening Supreme Court authority where the latter is “clearly irreconcilable” with the former. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc); see also Avilez v. Garland, 69 F.4th 525, 533 (9th Cir. 2023) (“[T]he ‘clearly irreconcilable' requirement ‘is a high standard.'” (quoting FTC v. Consumer Def., LLC, 926 F.3d 1208, 1213 (9th Cir. 2019))). The question here is whether Bruen is clearly irreconcilable with Vongxay. The court agrees with the Government that it is not. (See 2d Resp. at 9.)
Heller itself recognized that “the right secured by the Second Amendment is not unlimited,” and it expressly cabined that right to “law-abiding citizens.” 554 U.S. at 625-27 & n.26 (advising that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,” which are “presumptively lawful”); accord id. at 644 (Stevens, J., dissenting) (recognizing that the Heller majority “limit[ed] the protected class to ‘law-abiding, responsible citizens'” (quoting id. at 635)). Following Heller, the Ninth Circuit upheld the felon in possession statute against a Second Amendment challenge in Vongxay, stating that “[n]othing in Heller can be read legitimately to cast doubt on the constitutionality of § 922(g)(1).” Vongxay, 594 F.3d at 1114. Then came Bruen where, “in keeping with Heller,” the Supreme Court held that if “the Second Amendment's plain text covers an individual's conduct . . . the government must demonstrate that the [challenged] regulation is consistent with this Nation's historical tradition of firearm regulation.” 597 U.S. at 17 (rejecting the former means-end scrutiny approach in the context of Second Amendment challenges). Although Vongxay did not apply the test now required under Bruen, both cases keep with Heller's command that the right protected by the Second Amendment is limited to law-abiding citizens. See id. at 8-10, 71; see also Vongxay, 594 F.3d at 1115. And rather than employing the means-end scrutiny approach that Bruen expressly rejected, the Vongxay court “looked at the text of the Second Amendment” and “considered historical understanding,” thus “preview[ing] Bruen's text-and-history test” in a manner that “demonstrate[s] a compatibility with Bruen, not a fundamental inconsistency.” United States v. Robinson, No. C22-0212TL, 2023 WL 5634712, at *5 (W.D. Wash. Aug. 31, 2023); see also Vongxay, 594 F.3d at 1117-18.
Vongxay is not clearly irreconcilable with Bruen. This conclusion is consistent with the overwhelming consensus of other courts in this Circuit that have faced this precise issue.Under Vongxay, Mr. Cao's second motion to dismiss must be denied.
See, e.g., United States v. Roberts, __ F.Supp.3d __, 2024 WL 50889, at *6 (D. Alaska Jan. 4, 2024); United States v. Still, No. 2:22-CR-00074-RMP, 2023 WL 8482856, at *3 (E.D. Wash. Dec. 7, 2023); United States v. Hindman, No. CR23-5062DGE, 2023 WL 8020699, at *5 (W.D. Wash. Nov. 20, 2023); United States v. Gamble, __ F.Supp.3d __, 2023 WL 6460665, at *3 (D. Nev. Oct. 4, 2023); Robinson, 2023 WL 564712, at *5; United States v. Chatman, No. 22-cr-00453-CRB-1, 2023 WL 3509699, at *1 (N.D. Cal. May 16, 2023); United States v. Villalobos, No. 3:19-cr-00040-DCN, 2023 WL 3044770, at *10 (D. Idaho Apr. 21, 2023); Walker v. Bonta, No. 20-CV-00031-DMS-AGS, 2023 WL 2815356, at *3 (S.D. Cal. Apr. 6, 2023); United States v. Guthery, No. 2:22-cr-00173-KJM, 2023 WL 2696824, at *4 (E.D. Cal. Mar. 29, 2023); United States v. Jackson, 656 F.Supp.3d 1239, 1243-44 (W.D. Wash. 2023); United States v. Moore, No. 3:20-cr-00474-IM-1, 2023 WL 154588, at *2 (D. Or. Jan. 11, 2023); United States v. Butts, 637 F.Supp.3d 1134, 1138 (D. Mont. Oct. 31, 2022); United States v. Nevens, No. CR 19-774-DMG, 2022 WL 17492196, at *2 (C.D. Cal. Aug. 15, 2022).
Because Vongxay controls, the court need not reach Mr. Cao's argments regarding application of the Bruen test. (See 2d MTD at 10-31.) The court notes, however, that the Ninth Circuit's recent decision in United States v. Perez-Garcia strongly suggests that Section 922(g)(1) would withstand the Bruen test. See United States v. Perez-Garcia, __ F.4th __, 2024 WL 1151665, at *14 (9th Cir. Mar. 18, 2024) (rejecting Second Amendment challenge under Bruen to the Bail Reform Act's prohibition of firearm possession by pretrial detainees, based in part on “a lengthy and extensive Anglo-American tradition of disarming individuals who are not law-abiding, responsible citizens”).
IV. CONCLUSION
For the foregoing reasons, the court DENIED Mr. Cao's motions to dismiss (Dkt. ## 25, 27). (See generally 4/2/24 Order.)