Summary
adopting 2019 WL 7504863 (W.D. Mo. Dec. 4, 2019)
Summary of this case from United States v. HartOpinion
Case No. 17-03009-01-CR-S-BP
01-08-2020
UNITED STATES OF AMERICA, Plaintiff, v. KENNETH GARNER, Defendant.
ORDER AND OPINION (1) ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND (2) DENYING DEFENDANT'S MOTION TO DISMISS COUNTS I AND III
Defendant was charged in a Second Superseding Indictment with two counts (Counts I and III) of being an unlawful user of controlled substances in possession of firearms in violation of 18 U.S.C. § 922(g)(3) and one count (Count II) of possessing marijuana with intent to distribute. (Doc. 56.) The Second Superseding Indictment includes forfeiture allegations.
Defendant filed a Motion to Dismiss, seeking dismissal of Counts I and III. (Doc. 50.) He argues that the term "unlawful user" is unconstitutionally vague on its face and thus violates the Fifth Amendment's Due Process Clause. The Honorable David P. Rush, United States Magistrate Judge for this District, issued a Report recommending that the Motion to Dismiss be denied. (Doc. 61.) Defendant objects to Judge Rush's Report and Recommendation ("the Report"), contending that prior Eighth Circuit decisions rejecting his argument are no longer valid. The Government has not responded to the Objection, and the time for doing so has passed. Local Rule 74.1(b)(2). The Court has conducted a de novo review as required by 28 U.S.C. § 636(b)(1). Having conducted this review, the Court adopts the Report as the Order of the Court and denies the Motion to Dismiss.
This Order is intended to summarize and supplement the Report's analysis. The Eighth Circuit has held that while a vagueness challenge to §922(g)(3) need not establish that the statute "is vague in all its applications, our case law still requires [that the defendant] show that the statute is vague as applied to his particular conduct." United States v. Bramer, 832 F.3d 908, 909 (8th Cir. 2016) (per curiam). In reaching this decision, the Court of Appeals acknowledged the Supreme Court's then-recent decision in United States v. Johnson, 135 S. Ct. 2551 (2015), but held that Johnson did not dictate a different result. Bramer, 832 F.3d at 909.
Defendant argues that the Eighth Circuit misinterpreted Johnson, and that subsequent Supreme Court decisions - Sessions v. Dimaya, 138 S. Ct. 1204 (2018) and Rehaif v. United States, 139 S. Ct. 2191 (2019) - confirm the Eighth Circuit's misinterpretation. But obviously this Court is not empowered to declare that Bramer misinterpreted Johnson, and neither Dimaya or Rehaif are so clear that this court is justified in declaring that Bramer has been overruled by the Supreme Court's subsequent decisions. Dimaya applied Johnson to a different statute but did not purport to expand Johnson's discussion of the void for vagueness doctrine. As stated, Bramer took Johnson into account, so given that Dimaya did not alter the analysis the Court cannot conclude that Dimaya clearly establishes that Bramer's interpretation of Johnson was incorrect. With respect to Rehaif, Defendant does not contend that anything in that case bears on the issue presently before the Court. Instead, he argues that cases from other circuits holding that § 922(g)(3) is not unconstitutionally vague have been vacated and remanded for reconsideration in light of Rehaif. But this act by the Supreme Court does not mean that those decisions were wrong - particularly since Rehaif does not involve a vagueness argument.
The Court concludes that it is presently bound by Bramer. Therefore, Defendant's objections to the Report are overruled, the Report is adopted as the Order of the Court, and the Motion to Dismiss is denied.
IT IS SO ORDERED.
/s/ Beth Phillips
BETH PHILLIPS, CHIEF JUDGE
UNITED STATES DISTRICT COURT DATE: January 8, 2020