Opinion
CRIMINAL 3:23CR105 (RCY)
10-25-2023
UNITED STATES OF AMERICA v. HENRY MARROW, Defendant.
MEMORANDUM OPINION
Roderick C. Young United States District Judge
This matter is before the Court on Defendant Henry Marrow's (“Mr. Marrow” or “the Defendant”) Motion to Dismiss the Indictment, ECF No. 20. The Defendant seeks dismissal of Count I of the indictment, which charges him with Possession of a Firearm and Ammunition by a Convicted Felon, in violation of 18 U.S.C. § 922(g)(1), based on the Supreme Court's decision in N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. ----, 142 S.Ct. 2111 (2022). See Mot. Dismiss Indictment (“Mot. Dismiss”) 1-2, 6-17, ECF No. 20. The Defendant brings both facial and as-applied challenges to § 922(g)(1). For the reasons stated below, the Court will deny the Defendant's Motion in full.
I. BACKGROUND
Mr. Marrow was indicted on August 15, 2023, on one count of Possession of a Firearm and Ammunition by a Convicted Felon pursuant to 18 U.S.C. § 922(g)(1), and one count of Possession with Intent to Distribute Cocaine pursuant to 21 U.S.C. § 841(a)(1), (b)(1)(C). Indictment 1-2, ECF No. 1. Mr. Marrow was arraigned on August 22, 2023. ECF No. 15. Mr. Marrow's status as a convicted felon is not in dispute.
II. LEGAL STANDARD
Federal Rule of Criminal Procedure 12 allows parties to “raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). The Defendant here requests that the Court dismiss Count I of the indictment against him. “An indictment may be dismissed if the statute on which the indictment is premised is unconstitutional.” United States v. Kearney, 2023 WL 3940106, at *1 (E.D. Va. June 9, 2023); see United States v. Brown, 715 F.Supp.2d 688, 689 (E.D. Va. 2010); cf. Fed. R. Crim. P. 12(b)(3)(B) (permitting a defendant to, before trial, file a motion alleging a “defect in the indictment”).
III. DISCUSSION
The Defendant argues that the statute upon which his indictment is premised, 18 U.S.C. § 922(g)(1), is unconstitutional on its face and as applied to him because it violates the Second Amendment under Bruen's new text-and-history test.
Section 922(g)(1) reads, in relevant part:
It shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . [to] possess in or affecting commerce, any firearm or ammunition.18 U.S.C. § 922(g)(1).
The Defendant argues that Bruen “upended Second Amendment doctrine” with its text-and-history test. Mot. Dismiss 1. He argues that “§ 922(g)(1) regulates conduct the Second Amendment protects,” meaning that § 922(g)(1) is “presumptively unconstitutional under Bruen's plain text standard” and that the burden thus shifts to the government to “show[] that § 922(g)(1) is consistent with the Nation's historical tradition of firearm regulation.” Id. at 11, 16-17; see also id. 6-11.
This Court has already carefully considered and denied each of the arguments set forth in this Motion to Dismiss. See United States v. Lane, 2023 WL 5663084 (E.D. Va. Aug. 31, 2023). Other courts in this district have persuasively done the same, with similar outcomes. See, e.g., United States v. Riley, 635 F.Supp.3d 411 (E.D. Va. 2022); United States v. Finney, No. 2:23cr13, 2023 WL 2696203 (E.D. Va. Mar. 29, 2023). This Court finds no reason to deviate from this prior analysis and instead adopts in full the reasoning previously set forth in its Memorandum Opinion in United States v. Lane.
In Lane, this Court held that the Fourth Circuit's preBruen precedents upholding § 922(g)(1)'s constitutionality remain good law and require denial of a motion to dismiss an indictment under § 922(g)(1). See Lane, 2023 WL 5663084, at *1, 7-10. Alternatively, this Court held that Bruen reaffirmed the Supreme Court's instruction that “the people” whose conduct the Second Amendment protects includes only “law-abiding citizens” and not felons like the Defendant here. See id. at 10-13.
The Defendant here argues that § 922(g)(1) is unconstitutional both facially and as applied to him. But the Defendant, as did the defendant in Lane, makes the same argument for both his facial and his as-applied challenges: § 922(g)(1) facially criminalizes possessing a firearm or ammunition as a felon. And the statute applies to the Defendant because he was a felon possessing a gun or ammunition. Because the Defendant argues both challenges in the same way (and does so by making the same arguments that the defendant made in Lane), the Court here can dispose of both challenges by relying on Lane's single and complete Bruen analysis. See Lane, 2023 WL 5663084, at *4-13.
IV. CONCLUSION
For the reasons detailed above, the Defendant's Motion to Dismiss the Indictment, ECF No. 20, will be denied.
An appropriate Order shall issue.