United States v. Farris

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 16, 2024
• Docket: 22-1412
• Status: Unpublished

Opinion

Appellate Case: 22-1412 Document: 010110983968 Date Filed: 01/16/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 16, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-1412 (D.C. No. 1:22-CR-00149-RM-1) MAURICE FARRIS, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, BRISCOE, and EID, Circuit Judges. _________________________________

Defendant Maurice Farris entered a conditional guilty plea to being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to a

term of imprisonment of thirty-seven months, to be followed by a three-year term of

supervised release. Farris now appeals, arguing that the district court should have

dismissed the indictment on the grounds that § 922(g)(1) is unconstitutional under the

Second Amendment. After Farris filed his appeal, however, this court rejected the

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 22-1412 Document: 010110983968 Date Filed: 01/16/2024 Page: 2

precise argument that Farris now asserts in his appeal. Consequently, exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgment of the district

court.

I

On May 4, 2022, a federal grand jury indicted Farris on a single count of being

a felon in possession of a firearm, in violation of § 922(g)(1). The indictment alleged

that on April 19, 2022, Farris, who had previously been convicted of a felony,

knowingly possessed a firearm and ammunition.

Farris moved to dismiss the indictment, arguing that the Supreme Court’s

decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111

(2022), “marked a dramatic shift in Second Amendment law” and effectively

overruled Tenth Circuit precedent upholding the constitutionality of § 922(g)(1)’s

ban on the possession of firearms by convicted felons. ROA, Vol. I at 32; see United

States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009) (rejecting Second

Amendment and Commerce Clause challenges to § 922(g)(1)). After hearing

arguments on Farris’s motion to dismiss, the district court denied the motion.

Farris then entered into a written plea agreement with the government. Under

the terms of the agreement, Farris agreed to plead guilty to the single charge alleged

in the indictment. Farris also “agree[d] to waive appellate review of any and all

motions filed by him in this matter, except those raised in his Motion to Dismiss the

Indictment under the Second Amendment and the Court’s . . . oral denial of the

Motion.” ROA, Vol. I at 62.

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On November 18, 2022, the district court sentenced Farris to a term of

imprisonment of thirty-seven months, to be followed by a three-year term of

supervised release. Judgment was entered in the case that same day. Farris thereafter

filed a timely notice of appeal.

II

Farris argues in his appeal, as he did in his motion to dismiss, that § 922(g)(1)

is unconstitutional under the Second Amendment. Farris concedes, however, that

after he filed his appeal, a panel of this court addressed and rejected the very same

arguments that he asserts in his appeal. Specifically, in Vincent v. Garland, 80 F.4th

1197, 1202 (10th Cir. 2023), cert. docketed, No. 23-683 (U.S. Dec. 26, 2023), a panel

of this court “conclude[d] that Bruen did not indisputably and pellucidly abrogate our

precedential opinion in McCane.” In reaching this conclusion, the panel in Vincent

noted in relevant part that “[t]hough Bruen created a new test for determining the

scope of the Second Amendment, the [Supreme] Court didn’t appear to question the

constitutionality of longstanding prohibitions on possession of firearms by convicted

felons” and that, in fact, “Bruen contain[ed] two potential signs of support for these

prohibitions.” Id. at 1201.

In a joint supplement filed with this court, Farris “agrees that his constitutional

challenge to § 922(g)(1) before this Court is foreclosed by McCane and Vincent and

[he] does not oppose a summary affirmance for that reason.” Joint Supp. at 2–3.

Farris asserts only that “he seeks to preserve the claim for possible en banc

reconsideration or Supreme Court review.” Id. at 3. In light of Farris’s concession,

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we agree that a summary affirmance is appropriate. See United States v. Borne, No.

23-8008, 2023 WL 6383732 at *1 (10th Cir. Oct. 2, 2023) (summarily affirming

district court’s decision upholding the constitutionality of § 922(g)(1) in light of

Vincent).

III

The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge