United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2778
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Andrew Xavier Seay, *
*
Appellant. *
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Submitted: May 13, 2010
Filed: September 8, 2010
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Before BYE, MELLOY, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Andrew Seay was indicted and pled guilty to possession of a firearm while
being an unlawful user of, or addicted to, a controlled substance, in violation of 18
U.S.C. §§ 922(g)(3) and 924(a)(2), and was sentenced by the district court1 to nine
months imprisonment. Seay filed this timely appeal, arguing that the government
unnecessarily delayed his indictment and that his conviction is unconstitutional under
the Second Amendment. The government moved to dismiss Seay’s appeal on the
1
The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
grounds that Seay waived his appeal rights by pleading guilty. We grant the
government’s motion in part, deny it in part, and affirm Seay’s conviction.
I.
In March 2008, Seay was on probation as a result of a South Dakota conviction
for distribution and possession with intent to distribute marijuana. On March 7, 2008,
state law enforcement officers conducted a probation search of Seay’s vehicle and
residence, during which they found marijuana in Seay’s vehicle and residence, and
four firearms—two pistols and two shotguns—in Seay’s residence. Seay’s roommate
told the officers that he and Seay used the shotguns for hunting. Seay denied that the
pistols belonged to him. Seay was arrested on state charges based on the items found
in the search. Following his arrest, Seay provided a urine sample that tested positive
for marijuana.
On November 4, 2008, Seay was indicted by a federal grand jury for possessing
a firearm while being an unlawful user of, or addicted to, a controlled substance, in
violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). Seay pled not guilty and moved
to dismiss the indictment, arguing that the government unnecessarily delayed in
presenting the case to the grand jury and that the indictment violated his Second
Amendment rights. The magistrate judge2 issued a Report and Recommendation (“R
& R”), recommending that Seay’s motion be denied. The district court never adopted
the R & R, however, as Seay pled guilty on April 8, 2008. Seay’s plea agreement
contained a standard waiver of defenses and appeal rights, stating that Seay “waives
all defenses and his right to appeal any non-jurisdictional issues.” (Appellant’s Add.
9.) At sentencing, the district court determined Seay’s offense level to be 23, with a
criminal history category III, resulting in a Guidelines sentencing range of 57 to 71
2
The Honorable John E. Simko, United States Magistrate Judge for the District
of South Dakota.
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months imprisonment. The district court varied downward significantly and imposed
a nine-month sentence.
Following the imposition of sentence, Seay filed a notice of appeal. The
government moved to dismiss the appeal based on the appeal waiver in Seay’s plea
agreement. After considering briefs from both parties, we elected to decide the waiver
issue along with the merits of Seay’s appeal, which is now before us.
II.
Before addressing the merits of Seay’s appeal, we must first decide whether he
has waived the right to bring this appeal at all.
As a general rule, “[a] defendant’s knowing and intelligent guilty plea
forecloses ‘independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty plea.’”
United States v. Vaughan, 13 F.3d 1186, 1187 (8th Cir. 1994) (quoting
Tollett v. Henderson, 411 U.S. 258, 267 (1973)). There are exceptions
to this rule, however; a person may, despite a valid guilty plea, pursue a
certain type of claim that has been variously defined as a claim that
attacks “the State’s power to bring any indictment at all,” United States
v. Broce, 488 U.S. 563, 575 (1989), that protects a defendant’s “right not
to be haled into court,” Blackledge v. Perry, 417 U.S. 21, 30 (1974), and
that “the charge is one which the State may not constitutionally
prosecute,” Menna v. New York, 423 U.S. 61, 62 n.2 (1975) (per
curiam). We have often interpreted these Supreme Court cases to
foreclose claims that raise “nonjurisdictional” issues and to permit only
claims that question the trial court’s “jurisdiction.”
Weisberg v. Minnesota, 29 F.3d 1271, 1279 (8th Cir. 1994) (alterations in original);
see also United States v. Smith, 422 F.3d 715, 724 (8th Cir. 2005) (“It is a
well-established legal principle that a valid plea of guilty is an admission of guilt that
waives all nonjurisdictional defects and defenses.”); Walker v. United States, 115 F.3d
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603, 604 (8th Cir. 1997) (“Stated differently, a valid guilty plea forecloses an attack
on a conviction unless on the face of the record the court had no power to enter the
conviction or impose the sentence.”). Thus, in order to bring this appeal, Seay must
show that his appeal is jurisdictional in nature.
First, Seay argues that the government improperly delayed seeking an
indictment in his case, and that the district court should have dismissed the indictment
under Federal Rule of Criminal Procedure 48. Rule 48 allows a court to “dismiss an
indictment . . . if unnecessary delay occurs in: (1) presenting a charge to a grand jury;
(2) filing an information against a defendant; or (3) bringing a defendant to trial.”
Fed. R. Crim. P. 48(b). The essence of Seay’s argument—that the government waited
too long to prosecute him—is similar to the argument raised in Cox v. Lockhart, 970
F.2d 448 (8th Cir. 1992). In Cox, a habeas petitioner argued, following his valid
guilty plea, that his state speedy trial claim should be analyzed as a Sixth Amendment
speedy trial claim. Id. at 452-53. We held that the petitioner had waived his right to
a speedy trial by pleading guilty, noting that “[a] voluntary plea of guilty constitutes
a waiver of all non-jurisdictional defects[,] . . . [and] the right to a speedy trial is non-
jurisdictional in nature.” Id. at 453 (alterations in original) (quoting Becker v.
Nebraska, 435 F.2d 157, 157 (8th Cir. 1970) (per curiam)); see also United States v.
Cook, 463 F.2d 123, 125 n.6 (5th Cir. 1972) (“[W]e . . . recogniz[e] that pleas of
guilty ordinarily constitute a waiver of all non-jurisdictional defects . . . including the
right to object to delay in trial under [Fed. R. Crim. P.] 48(b) or the Sixth
Amendment.”); United States v. Doyle, 348 F.2d 715, 718-19 (2d Cir. 1965)
(declining to reach Rule 48(b) and Sixth Amendment arguments following
defendant’s guilty plea). We believe that Seay’s Rule 48 argument is similarly non-
jurisdictional, as the district court was not without power to hear the case, see Walker,
115 F.3d at 604, simply because it declined to exercise its discretion to dismiss the
indictment due to delay. Thus, we hold that Seay has waived his Rule 48 argument
by pleading guilty.
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Second, Seay argues that 18 U.S.C. § 922(g)(3) is facially unconstitutional
following the Supreme Court’s decision in District of Columbia v. Heller, 128 S. Ct.
2783 (2008). According to Seay, the prohibition on firearm possession in § 922(g)(3)
violates his individual right to keep and bear arms enshrined in the Second
Amendment. This is not an as-applied challenge; rather, Seay argues that § 922(g)(3)
is unconstitutional in all instances. See United States v. Salerno, 481 U.S. 739, 745
(1987) (to prove facial unconstitutionality, “the challenger must establish that no set
of circumstances exists under which the Act would be valid”). We have previously
held that such facial attacks are jurisdictional in nature and survive a valid guilty plea.3
See, e.g., United States v. Morgan, 230 F.3d 1067, 1071 (8th Cir. 2000) (“A claim that
a statute is facially unconstitutional” survives a guilty plea.); Sodders v. Parratt, 693
F.2d 811, 812 (8th Cir. 1982) (per curiam) (“[T]his Circuit and others have indicated
that a guilty plea does not preclude a defendant from claiming that the statute under
which he pleaded is unconstitutional.”); see also United States v. Bell, 70 F.3d 495,
496-97 (7th Cir. 1995); United States v. Palacios-Casquete, 55 F.3d 557, 561 (11th
Cir. 1995); United States v. Skinner, 25 F.3d 1314, 1316-17 (6th Cir. 1994); United
States v. Montilla, 870 F.2d 549, 552-53 (9th Cir. 1989).
The government directs us to United States v. Fox, 573 F.3d 1050 (10th Cir.),
cert. denied, 130 S. Ct. 813 (2009), in which the Tenth Circuit held, without
significant discussion, that a defendant’s challenge to the constitutionality of 18
U.S.C. § 922(g) was non-jurisdictional and, therefore, waived. Id. at 1052 n.1. The
government argues that Fox’s holding is consistent with the way the Supreme Court
has explained the concept of jurisdiction in cases such as United States v. Cotton, 535
U.S. 625 (2002). In Cotton, several defendants were convicted of conspiring to
distribute, and to possess with intent to distribute, a detectable amount of cocaine and
3
As-applied challenges to the constitutionality of a statute, however, are not
jurisdictional. See United States v. Morgan, 230 F.3d 1067, 1071 (8th Cir. 2000). To
the extent that Seay challenges the constitutionality of § 922(g)(3) as applied to him,
we hold that this argument is foreclosed by his guilty plea.
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cocaine base. Id. at 627-28. The district court, however, made a drug-quantity finding
at sentencing that implicated the enhanced penalties under 21 U.S.C. § 841(b)(1)(A).
Id. at 628. The defendants appealed, arguing that their sentences were invalid under
Apprendi v. New Jersey, 530 U.S. 466 (2000), “because the issue of drug quantity was
neither alleged in the indictment nor submitted to the petit jury.” Cotton, 535 U.S. at
628-29. The Fourth Circuit agreed, vacating the defendants’ sentences “because an
indictment setting forth all the essential elements of an offense is both mandatory and
jurisdictional, . . . [and] a court is without jurisdiction to . . . impose a sentence for an
offense not charged in the indictment.” Id. (quotation omitted). However, the
Supreme Court rejected the Fourth Circuit’s jurisdictional holding, noting that the
“Court some time ago departed from [the] view that indictment defects are
‘jurisdictional.’” Id. at 631. The modern concept of jurisdiction, according to the
Court, is a “courts’ statutory or constitutional power to adjudicate the case.” Id. at 630
(quoting Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 89 (1998)).
Seay, however, does not argue that his indictment was defective, as did the
defendant in Cotton. Instead, he alleges that the indictment should never have been
brought at all because the government “may not constitutionally prosecute” him. See
Menna, 423 U.S. at 62 n.2. If Seay is correct, then he should never have been “haled
into court” at all, see Blackledge, 417 U.S. at 30, and his conviction must be reversed.
Such challenges to the court’s jurisdiction may be pursued despite a defendant’s guilty
plea. See Broce, 488 U.S. at 575; Menna, 423 U.S. at 62 n.2; Blackledge, 417 U.S.
at 30. Because we see no way to reconcile Fox with the clear language of our cases
holding that facial challenges are jurisdictional in nature, see Morgan, 230 F.3d at
1071, we hold that Seay’s Second Amendment challenge is jurisdictional and,
therefore, survives his guilty plea.
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III.
Having held that Seay’s constitutional argument survives his guilty plea, we
now turn to the merits of his claim. Seay argues that § 922(g)(3)’s ban on firearm
possession is facially unconstitutional following the Supreme Court’s Heller decision,
which he claims established the right to keep and bear arms as a fundamental
constitutional right. We review the constitutionality of the statute de novo.4 See
United States v. Rodriguez, 581 F.3d 775, 796 (8th Cir. 2009), pet. for cert. filed (U.S.
June 10, 2010) (No. 09-11360).
The Second Amendment 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.” Prior to 2009, the Supreme Court had not examined that right in depth.
This changed with the Court’s landmark decision in Heller, which established that the
Second Amendment right is an individual right unconnected to service in the militia,
and struck down the District of Columbia’s ban on handgun possession. See 128 S.
Ct. at 2791, 2797, 2821-22. In dicta, the Court emphasized that,
Like most rights, the right secured by the Second Amendment is not
unlimited. . . . Although we do not undertake an exhaustive historical
analysis today of the full scope of the Second Amendment, nothing in
our opinion should be taken to cast doubt on longstanding prohibitions
on the possession of firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive places such as schools
4
Although Seay failed to object to the magistrate judge’s R & R, this does not
affect our standard of review. See United States v. James, 353 F.3d 606, 612 (8th Cir.
2003) (“[W]here the defendant fails to file timely objections to the magistrate judge’s
report and recommendation, the factual conclusions underlying that defendant’s
appeal are reviewed for plain error. Our review of the questions of law, however,
remains de novo.” (quotation omitted)).
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and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.
Id. at 2816-17. The Court noted that its list of presumptively valid laws “does not
purport to be exhaustive.” Id. at 2817 n.26.
Since Heller, the Supreme Court determined the inevitable question of whether
the Second Amendment is applicable to the states through the Fourteenth Amendment.
See McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). In McDonald, the Court
stated, “[I]t is clear that the Framers and ratifiers of the Fourteenth Amendment
counted the right to keep and bear arms among those fundamental rights necessary to
our system of ordered liberty.” Id. at 3042. Although a majority of the Court held
that, as a fundamental right, the Second Amendment is applicable to the states, the
Court was unable to agree on how. See id. at 3030-31, 3044-50 (Alito, J., writing the
plurality opinion) (holding that the Second Amendment right is incorporated to the
states through the Due Process Clause of the Fourteenth Amendment); id. at 3058-88
(Thomas, J., concurring in part and concurring in the judgment) (arguing that the
Second Amendment right “is a privilege of American citizenship that applies to the
States through the Fourteenth Amendment’s Privileges or Immunities Clause”). The
plurality opinion stressed, however, that the Heller “holding did not cast doubt on
such longstanding regulatory measures as ‘prohibitions on the possession of firearms
by felons and the mentally ill’ . . . . We repeat those assurances here. . . .
[I]ncorporation does not imperil every law regulating firearms.” See id. at 3047
(plurality opinion) (quoting Heller, 128 S. Ct. at 2816-17)).
Following Heller, many defendants have argued that 18 U.S.C. § 922(g), or
some subsection thereof, violates the Second Amendment. To date, none have
succeeded. For example, we have upheld the constitutionality of § 922(g)(1) (felon
in possession). See United States v. Irish, 285 F. App’x 326 (8th Cir. 2008)
(unpublished per curiam). Our sister circuits have upheld the constitutionality of
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§ 922(g)(1), as well as § 922(g)(4) (persons committed to mental institutions or
adjudicated as a mental defective) and § 922(g)(9) (persons convicted of a
domestic-violence misdemeanor). See United States v. Williams, No. 09-3174, 2010
WL 3035483, at *4-7 (7th Cir. August 5, 2010) (§ 922(g)(1)); United States v. Rozier,
598 F.3d 768, 770-71 (11th Cir. 2010) (§ 922(g)(1)); United States v. McRobie, No.
08-4632, 2009 WL 82715, at *1 (4th Cir. Jan. 14, 2009) (unpublished per curiam)
(§ 922(g)(4)); United States v. Skoien, No. 08-3770, 2010 WL 2735747, at *7 (7th
Cir. July 13, 2010) (en banc) (§ 922(g)(9)); United States v. White, 593 F.3d 1199,
1206 (11th Cir. 2010) (same); cf. United States v. Marzzarella, No. 09-3185, 2010 WL
2947233, at *7-12 (3d Cir. July 29, 2010) (upholding challenge to 18 U.S.C. § 922(k),
which prohibits possession of any firearm with a removed, obliterated, or altered serial
number). But see United States v. Chester, No. 09-4084, 2010 WL 675261, at *3, 6
(4th Cir. Feb. 23, 2010) (unpublished per curiam) (vacating a district court’s refusal
to dismiss an indictment for violation of § 922(g)(9) under Heller and remanding for
the district court to conduct a more thorough analysis).
Turning to the subsection at issue here, § 922(g)(3) makes it unlawful for
anyone “who is an unlawful user of or addicted to any controlled substance” to
possess a firearm. Prior to Heller, we upheld the constitutionality of § 922(g)(3),
albeit not specifically under the Second Amendment. See United States v. Letts, 264
F.3d 787, 789-90 (8th Cir. 2001) (holding that § 922(g)(3) is not unconstitutional
under the Commerce Clause following United States v. Lopez, 514 U.S. 549 (1995)).
Following Heller, one circuit and several district courts have upheld § 922(g)(3)
against Second Amendment attack. See, e.g., United States v. Richard, 350 F. App’x
252, 260 (10th Cir. 2009) (unpublished) (holding, without significant discussion, that
§ 922(g)(3) is the kind of “longstanding prohibition[] on the possession of firearms”
preserved in Heller (quoting Heller, 128 S. Ct. at 2816-17)); United States v. Korbe,
No. 09-05, 2010 WL 2404394, at *3-4 (W.D. Pa. June 9, 2010) (unpublished)
(holding that § 922(g)(3) is a “regulatory measure[]” that Heller held to be
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“presumptively lawful”); United States v. Lacy, No. 09-CR-135, 2009 WL 3756987,
at *1 (E.D. Wis. Nov. 6, 2009) (unpublished) (“Nothing in Heller indicates that
§ 922(g)(3) somehow falls outside the range of permissible limitations on the right to
bear arms . . . .”); United States v. Carter, No. 2:09-cr-00055, 2009 WL 2160576, at
*3-4 (S.D. W. Va. July 13, 2009) (unpublished) (refusing to dismiss indictment for
violation of § 922(g)(3), noting that it “is far less restrictive than the laws held
unconstitutional in Heller and is consistent with the safety based exceptions
recognized in that case”); United States v. Prince, No. 09-10008, 2009 WL 1875709,
at *2 (D. Kan. June 26, 2009) (unpublished), rev’d on other grounds, 593 F.3d 1178
(10th Cir. 2010), cert. denied, 2010 WL 1811236 (June 14, 2010) (“Heller . . . did not
and does not prohibit Congress from putting certain limitations on firearms [such as
§ 922(g)(3)], particularly when, as in this case, that firearm is involved in illegal
activity.”); United States v. Yancey, No. 08-cr-103, 2008 WL 4534201, at *1 (W.D.
Wis. Oct. 3, 2008) (unpublished) (holding that § 922(g)(3) “is another example of a
longstanding prohibition on firearm possession that Heller permits,” but noting that,
at the time, “no court ha[d] confronted” the statute yet); see also United States v.
Patterson, 431 F.3d 832, 836 (5th Cir. 2005) (“Prohibiting unlawful drug users from
possessing firearms is not inconsistent with the right to bear arms guaranteed by the
Second Amendment . . . .”).5
Nothing in Seay’s argument convinces us that we should depart company from
every other court to examine § 922(g)(3) following Heller. Further, § 922(g)(3) has
the same historical pedigree as other portions of § 922(g) which are repeatedly upheld
by numerous courts since Heller. See Gun Control Act of 1968, Pub. L. No. 90-618,
82 Stat. 1213. Moreover, in passing § 922(g)(3), Congress expressed its intention to
5
Although Patterson is a pre-Heller case, at the time Patterson was decided the
Fifth Circuit had already held, in a decision very similar to Heller, that the Second
Amendment right to keep and bear arms is an individual right unrelated to militia
service. See United States v. Emerson, 270 F.3d 203, 227-61 (5th Cir. 2001).
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“keep firearms out of the possession of drug abusers, a dangerous class of
individuals.” United States v. Cheeseman, 600 F.3d 270, 280 (3d Cir. 2010), pet. for
cert. filed, 78 U.S.L.W. 3731 (U.S. June 1, 2010) (No. 09-1470). As such, we find
that § 922(g)(3) is the type of “longstanding prohibition[] on the possession of
firearms” that Heller declared presumptively lawful. See 128 S. Ct. at 2816-17.
Accordingly, we reject Seay’s facial challenge to § 922(g)(1).
IV.
For the foregoing reasons, we grant the government’s motion in part, deny it in
part, and affirm Seay’s conviction.
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