United States v. Huitron-Guizar

FILED
United States Court of Appeals
Tenth Circuit

May 7, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 11-8051
v.

EMMANUEL HUITRON-GUIZAR,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 1:11-CR-00072-WFD-1)

Ronald Pretty, Cheyenne, Wyoming, for Defendant - Appellant.

Todd Shugart, Assistant United States Attorney, (and Christopher A. Crofts,
United States Attorney, on the brief), Casper, Wyoming, for Plaintiff - Appellee.

Before BRISCOE, Chief Judge, HOLLOWAY, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant Emmanuel Huitron-Guizar entered a conditional

guilty plea to being an illegal alien in possession of firearms transported or

shipped in interstate commerce, 18 U.S.C. §§ 922(g)(5)(A), 924(a)(2), and was
sentenced to 18 months’ imprisonment. Mr. Huitron-Guizar is to be delivered

upon release to an immigration official for deportation. On appeal, he argues that

§ 922(g)(5)(a) is unconstitutional and that the district court committed various

sentencing errors in applying the Sentencing Guidelines. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

Background

Mr. Huitron-Guizar was born in Mexico and brought to Wyoming at age

three. In March 2011, officers executed a warrant on his home and discovered

three firearms—a 7.62x39mm rifle, a 12-gauge semi-automatic shotgun, and a

Smith & Wesson semi-automatic pistol. They learned from his sister that Mr.

Huitron-Guizar, now 24 years old, was, unlike her, not a U.S. citizen. The district

court denied his motion to dismiss the indictment on grounds that § 922(g)(5)

unconstitutionally abridges the right to bear arms as interpreted in District of

Columbia v. Heller, 554 U.S. 570 (2008), and violates the Fourteenth

Amendment’s Equal Protection Clause (which applies to the federal government

through the Fifth Amendment’s Due Process Clause). The district court also

declined to apply a lower “sporting purposes” base offense level, U.S.S.G.

§ 2K2.1(b)(2), or to depart or vary downward based upon Mr. Huitron-Guizar’s

age and allegations of governmental misconduct.

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 Discussion

The constitutionality of a federal statute is reviewed de novo, United States

v. Carel, 668 F.3d 1211, 1216 (10th Cir. 2011). Challenges to a sentence’s

substantive reasonableness are reviewed for abuse of discretion; legal or

procedural conclusions about the Guidelines are reviewed de novo. United States

v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007).

A. Second Amendment and Equal Protection Challenges

Heller held that the Second Amendment protects an individual right to

possess a firearm, unconnected with service in a militia, and to use that firearm

for traditionally lawful purposes, like self-defense within the home. This right

was understood by eminent authorities like William Blackstone and James Wilson

as but an application of the natural right of self-preservation. 554 U.S. at 593-94,

585. Yet no right is absolute. The right to bear arms, however venerable, is

qualified by what one might call the “who,” “what,” “where,” “when,” and

“why.” For instance, it is unlawful to knowingly receive guns with obliterated

serial numbers, see 18 U.S.C. § 922(k); United States v. Marzzarella, 614 F.3d

85, 100-01 (3d Cir. 2010). A juvenile, with some exceptions, cannot possess a

handgun, see 18 U.S.C. §922(x), United States v. Rene E., 583 F.3d 8, 16 (1st

Cir. 2009). An airline passenger may not carry aboard a concealed firearm, see

49 U.S.C. §46505, United States v. Davis, 304 F. App’x. 473 (9th Cir. 2008).

Nor may a drug dealer use or carry a weapon to protect his stash, see 18 U.S.C. §

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924(c), United States v. Jackson, 555 F.3d 635, 636 (7th Cir. 2009).

Our issue concerns the “who.” Section 922(g), a part of the amended Gun

Control Act of 1968, forbids gun possession by nine classes of individuals:

felons, fugitives, addicts or users of controlled substances, the mentally ill, illegal

and non-immigrant aliens, the dishonorably discharged, renouncers of their

citizenship, those subject to court orders for harassing, stalking, or threatening

intimate partners or their children, and those convicted for misdemeanor domestic

violence. No Second Amendment challenge since Heller to any of these

provisions has succeeded. See, e.g., United States v. McCane, 573 F.3d 1037,

1047 (10th Cir. 2009) (felons); In re U.S., 578 F.3d 1195, 1200 (10th Cir. 2009)

(misdemeanor domestic violence); United States v. Richard, 350 F. App’x. 252,

260 (10th Cir. 2009) (drug users); United States v. Reese, 627 F.3d 792, 802-04

(10th Cir. 2010) (domestic protection order). Last year, the instant provision, on

illegal aliens, was upheld against Second Amendment challenge by the Fifth

Circuit, United States v. Portillo-Munoz, 643 F.3d 437, 442 (5th Cir. 2011), and

the Eighth Circuit, United States v. Flores, 663 F.3d 1022 (8th Cir. 2011).

Mr. Huitron-Guizar agrees that those guilty of serious crimes and the

mentally ill are sensibly stripped of firearms they might otherwise lawfully keep.

Yet he wonders what it is about aliens that permits Congress to impose what he

considers a similar disability? The starting point to any answer was given by

Justice Jackson in Johnson v. Eisentrager, 339 U.S. 763, 770 (1950):

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 The alien, to whom the United States has been traditionally hospitable,
has been accorded a generous and ascending scale of rights as he
increases his identity with our society. Mere lawful presence in the
country creates an implied assurance of safe conduct and gives him
certain rights; they become more extensive and secure when he makes
preliminary declaration of intention to become a citizen, and they
expand to those of full citizenship upon naturalization.

This ascending scale of constitutional rights is elaborate. An alien outside

the country has fewer rights than one within, e.g., an alien held at the border has

no right to a deportation hearing. Shaughnessy v. Mezei, 345 U.S. 206, 212

(1953). An unlawfully present alien has fewer rights than one lawfully here; an

illegal alien generally has no right to assert a selective-enforcement claim to

thwart deportation. Reno v. American-Arab Anti-Discrimination Comm., 525

U.S. 471, 488 (1999). A lawful alien here fewer than five years can be denied

enrollment in Medicare, unlike one here for, say, a decade. Mathews v. Diaz, 426

U.S. 67, 87 (1976). A temporary resident alien has fewer rights than a permanent

resident alien; the former, for example, may be barred from making campaign

contributions. Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281, 288

(D.D.C. 2011, aff’d 132 S.Ct. 1087 (2012). Likewise, a lawful permanent

resident has fewer rights than a citizen, since a state can form a citizens-only

police force. Foley v. Connelie, 435 U.S. 291, 300 (1978). Finally, one right is

limited to natural born citizens: eligibility to run for president. U.S. Const., Art.

II, § 1, cl. 5. The line separating lawful and unlawful aliens is often as bright as

that between aliens and citizens.

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 Mr. Huitron-Guizar’s implicit Equal Protection argument is that Congress

does not have power to “discriminate against non-citizens by not allowing them to

have all the constitutional rights that United States citizens have.” Aplt. Br. 16.

This is not correct. Federal statutes that classify based on alienage need only a

rational basis; they flow from plenary powers over admission, exclusion,

naturalization, national security, and foreign relations. Mathews v. Diaz, 426

U.S. at 81. The Court has “firmly and repeatedly endorsed the proposition that

Congress may make rules as to aliens that would be unacceptable if applied to

citizens.” Demore v. Kim, 538 U.S. 510, 522 (2003). Mr. Huitron-Guizar cannot

meet his burden of showing that there is no rational relationship (more below)

between the classification and a legitimate government end. Equal protection

requires that similarly situated individuals be treated similarly; aliens, let alone

those unlawfully here, are simply not situated like citizens.

More vexing is the Second Amendment claim. Until last year the federal

alien-in-possession statute had not been challenged in a U.S. Court of Appeals

under Heller. Does that amendment even protect illegal aliens? It provides: “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.” (Emphasis added.)

We know that the Fifth Amendment applies to illegal aliens within our territory

because it provides that “No person shall be....” Kwong Hai Chew v. Colding,

344 U.S. 590, 596-98 (1953). So does the Sixth Amendment, which protects the

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“accused,” who could be a citizen—or not. Wong Wing v. United States, 163

U.S. 228, 238 (1896). We also know that the Fourteenth Amendment’s Due

Process and Equal Protection Clauses apply to “any person.” Yick Wo v.

Hopkins, 118 U.S. 356, 369 (1886); Plyer v. Doe, 457 U.S. 202, 210 (1982).

Yet the meaning of “the people” is less clear. The only Supreme Court

case to scrutinize the phrase is United States v. Verdugo-Urquidez, 494 U.S. 259

(1990), which considered the right of aliens (lawful or not) to the protections of

the Fourth Amendment, another “right of the people.” The Court wrote:

‘[T]he people’ seems to have been a term of art employed in select parts
of the Constitution.... [Its uses] sugges[t] that ‘the people’ protected by
the Fourth Amendment, and by the First and Second Amendments, and
to whom rights and powers are reserved in the Ninth and Tenth
Amendments, refers to a class of persons who are part of a national
community or who have otherwise developed sufficient connection with
this country to be considered part of that community.

Id. at 265. The Court seemed unwilling to say that illegal aliens, who reside here

voluntarily and who accept some social obligations, id. at 273, have no rights the

government is bound to respect when, say, they protest a raid or detention.

Instead, Verdugo-Urquidez teaches that “People” is a word of broader content

than “citizens,” and of narrower content than “persons.” Compare id. at 269 (“If

such is true of the Fifth Amendment, which speaks in the relatively universal term

of ‘person,’ it would seem even more true with respect to the Fourth Amendment,

which applies only to ‘the people’”) with id. at 271 (“[A]liens receive

constitutional protections when they have come within the territory of the United

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States”—like “persons”—and “develop[] substantial connections with this

country”).

Does Heller shed any light? Neither majority nor dissents mentioned

“aliens,” “immigrants,” or “non-citizens.” The Court did say that “nothing in our

opinion” was meant to undermine the “longstanding prohibitions on the

possession of firearms by felons and the mentally ill,” two other categories

enumerated in § 922(g), given there as “examples.” 554 U.S. 626-27 & n.26.

Heller also observed that “in all six other provisions of the Constitution that

mention ‘the people,’ the term unambiguously refers to all members of the

political community,” id. at 580, which echoes Verdugo-Urquidez’s definition but

substitutes “political” for “national.”

And although the Court did not face the question before us, it is not exactly

reading between the lines to note how frequently the opinion connected arms-

bearing and citizenship. A sampling: “we do not read the Second Amendment to

protect the right of citizens to carry arms for any sort of confrontation, just as we

do not read the First Amendment to protect the right of citizens to speak for any

purpose,” id. at 595; “whatever else [the Second Amendment] leaves to future

evaluation, it surely elevates above all other interests the right of law-abiding,

responsible citizens to use arms in defense of hearth and home,” id. at 635. We

learn that the right was described in connection with the word “citizen” by

founding-era consensus (id. at 576-77, 599); admired commentators like St.

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George Tucker (id. at 594-95), James Madison (id. at 595), and John Norton

Pomeroy (id. at 618); the Freedmen’s Bureau Act of 1866 and Civil Rights Act of

1871 (id. at 615-16); state-court decisions between 1829-1871 (id. at 608, 612-

14); on through the crucial precedent of United States v. Miller, 307 U.S. 174

(1939) (id. at 625).

Yet despite this we hesitate to infer from Heller a rule that the right to bear

arms is categorically inapplicable to non-citizens. We realize that many district

courts have discerned such a rule, see, e.g., United States v. Guerrero-Leco, 2008

WL 4534226 at *1 (W.D.N.C. Oct. 6, 2008) (right belongs to citizens only). The

Fifth and Eighth circuits, by contrast, limited their holding to illegal aliens. See

also United States v. Yanez-Vasquez, 2010 WL 411112, at * 2 (D.Kan. Jan. 28,

2010). But we refrain because the question in Heller was the amendment’s raison

d'être—does it protect an individual or collective right?—and aliens were not part

of the calculus. Nor can we say that the word “citizen” was used deliberately to

settle the question, not least because doing so would conflict with Verdugo-

Urquidez, a case Heller relied on. It would require us to hold that the same

“people” who receive Fourth Amendment protections are denied Second

Amendment protections, even though both rights seem at root concerned with

guarding the sanctity of the home against invasion. Besides, Heller also spoke of

the First Amendment rights of “citizens,” though we know that that amendment

extends in some degree to resident aliens, too. Bridges v. Wixon, 326 U.S. 135,

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147-48 (1945).

Perhaps an even greater reason not to read an unwritten holding into Heller

is that the question seems large and complicated. “[S]ince this case represents

[our] first in-depth examination of the Second Amendment,” the Court explained,

“one should not expect it to clarify the entire field.” Heller, 554 U.S. at 635. The

Justices (on both sides of the question) drew upon the understanding of the age of

1787 in determining the right’s scope. We must follow that approach, yet this

textual-historical inquiry is unaddressed in the parties’ briefs, nor is there

anything to this end in the record. We know, for instance, that the founders’

notion of citizenship was less rigid than ours, largely tied to the franchise, which

itself was often based on little more than a period of residence and being a male

with some capital. 2 Collected Works of James Wilson 839-43 (K. Hall & M.

Hall eds. 2007). How, historically, has this country regulated weapon possession

by foreigners? Are we to understand gun ownership as among the private rights

not generally denied aliens, like printing newspapers or tending a farm, or one of

the rights tied to self-government, like voting and jury service, largely limited to

citizens? Is there a distinction between a “national” community (Verdugo-

Urquidez) and a “political” one (Heller)? Is it significant that McDonald v. City

of Chicago, 130 S.Ct. 3020, 3042 (2010), declared the right “fundamental”?

That Congress saw fit to exclude illegal aliens from carrying guns may

indicate its belief, entitled to our respect, that such aliens, as a class, possess no

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such constitutional right. We think we can avoid the constitutional question by

assuming, for purposes of this case, that the Second Amendment, as a “right of

the people,” could very well include, in the absence of a statute restricting such a

right, at least some aliens unlawfully here—and still easily find § 922(g)(5)

constitutional. The apparent inconsistency in assuming the existence of a right

before sustaining a law that acts as a blanket prohibition on it is, we believe,

outweighed by the prudence of abstaining on a question of such far-reaching

dimensions without a full record and adversarial argument. If the right didn’t

apply at all, the case would be at an end. If the right does apply, even if in less

robust dimensions than it does for citizens, the question is the level of scrutiny.

We applied “intermediate” scrutiny in Reese, 627 F.3d at 802, which

involved a Second Amendment challenge by a citizen to 18 U.S.C. § 922(g)(8),

the provision forbidding firearms to those subject to a domestic-protection order.

If we assume that an illegal alien like Mr. Huitron-Guizar, who has been here for

decades and nowhere else, is entitled to the lawful exercise of this enumerated

right, and if we observe that the law here not only burdens but eliminates the right

by placing, on a class of perhaps millions, a total prohibition upon possessing any

type of gun for any reason, “intermediate” scrutiny would seem to apply. Id., at

800 (comparing burdens imposed by the various § 922 restrictions). Under this

standard a law is sustained if the government shows that it is “substantially

related” to an “important” official end. Id. at 802.

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 The “principal purposes” of the Gun Control Act of 1968 are to “make it

possible to keep firearms out of the hands of those not legally entitled to possess

them because of age, criminal background, or incompetency, and to assist law

enforcement authorities in the States and their subdivisions in combating the

increasing prevalence of crime.” S.Rep. No. 90-1501, at 22 (1968). The alien-in-

possession ban was incorporated from a predecessor statute by the 1986 Firearm

Owners’ Protection Act, Pub.L. No. 99-308, 100 Stat. 449, likewise with purpose

of keeping instruments of deadly force away from those deemed irresponsible or

dangerous. S.Rep. No. 98-583, at 12 (1986).

Congress may have concluded that illegal aliens, already in probable

present violation of the law, simply do not receive the full panoply of

constitutional rights enjoyed by law-abiding citizens. Or that such individuals,

largely outside the formal system of registration, employment, and identification,

are harder to trace and more likely to assume a false identity. Or Congress may

have concluded that those who show a willingness to defy our law are candidates

for further misfeasance or at least a group that ought not be armed when

authorities seek them. It is surely a generalization to suggest, as courts do, see,

e.g., United States v. Orellana, 405 F.3d 360, 368 (5th Cir. 2005), that unlawfully

present aliens, as a group, pose a greater threat to public safety—but general laws

deal in generalities. The class of convicted felons, too, includes non-violent

offenders. See McCane, 573 F.3d at 1048-49 (10th Cir. 2009) (Tymkovich, J.,

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concurring) (suggesting that Heller’s “dictum” should not foreclose challenges to

the felon-dispossession law in § 922(g)(1)). The law applies with equal force to

those who entered yesterday and those who, like Mr. Huitron-Guizar, were carried

across the border as a toddler. The bottom line is that crime control and public

safety are indisputably “important” interests.

Nothing is this opinion purports to express an opinion on the Second

Amendment rights of lawfully present aliens, yet we note that, since 1998, under

this same statute, even those admitted on non-immigrant visas (usually issued to

visitors for business or pleasure) are prohibited from having firearms and

ammunition unless they secure a special waiver or happen to be hunters or

diplomatic or law-enforcement officials here on business. 18 U.S.C. § 922(y)(2).

The thrust of Heller, or at least the intended thrust of much post-Heller

litigation, has been to broaden the right. Recently some state statutes that burden

gun possession by lawful permanent aliens (which § 922(g)(5) does not cover)

have been declared invalid under the Equal Protection Clause, which requires that

strict scrutiny be applied to state laws that impose restrictions based on alienage.

See, e.g., People v. Bounasri, 915 N.Y.S.2d 921, 924 (N.Y. City Ct. 2011)

(invalidating New York statute dating from 1905, prohibiting non-citizens from

possessing a dangerous weapon, and noting related decisions in Michigan,

Nevada, California); Fletcher v. Haas, — F.Supp. 2d —, 2012 WL 1071713, at

*14 (D. Mass. Mar. 30, 2012) (holding that Massachusetts’s firearm regime

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contravenes the Second Amendment as applied to lawful permanent residents).

If the right’s “central component,” as interpreted by Heller, 554 U.S. at

599, is to secure an individual’s ability to defend his home, business, or family

(which often includes children who are American citizens), why exactly should all

aliens who are not lawfully resident be left to the mercies of burglars and

assailants? That must be at least one reason behind the wave of challenges to

§ 922(g)(5). But courts must defer to Congress as it lawfully exercises its

constitutional power to distinguish between citizens and non-citizens, or between

lawful and unlawful aliens, and to ensure safety and order. On this record, §

922(g)(5) withstands Mr. Huitron-Guizar’s Second Amendment and Equal

Protection challenges.

B. Sentencing Error

Mr. Huitron-Guizar was sentenced under U.S.S.G. § 2K2.1(a)(4)(B), see 3

R. 78, not, as he asserts, § 2K.1(a)(6), Aplt. Br. at 22. The former, which covers

offenses involving a “semiautomatic firearm that is capable of accepting a large

capacity magazine,” has a higher base offense level. Mr. Huitron-Guizar argues

that the “lawful sporting purposes” exception, U.S.S.G. § 2K2.1(b)(2), should

apply, since he claims sport shooting was his interest in the guns. The trial court

disagreed. 3 R. 78. Regardless, that exception does not, by its terms, apply to

offenses under (a)(4). U.S.S.G. § 2K2.1 cmt. n.6. Nor do we find that the court

abused its discretion in refusing to vary downwards based on age under § 5H1.1.

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The court found no unusual circumstances to justify a variance, though aware of

its legal authority to do so. United States v. Fonseca, 473 F.3d 1109, 1112 (10th

Cir. 2007). Finally, the argument that a departure or variance was in order based

on governmental conduct is meritless. The attempt to connect, in a vague, free-

wheeling way, the gun possession at issue here with the Fast and Furious

Operation of the Bureau of Alcohol, Tobacco, Firearms and Explosives is not

persuasive. The court nonetheless considered Mr. Huitron-Guizar’s history and

characteristics and saw fit to grant a variance, under 18 U.S.C. § 3553(a)(1), that

reduced the sentence by 12 months. 3 R. 80. The court did not abuse its

discretion.

AFFIRMED.

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