United States v. Jimenez

895 F.3d 228
Court of Appeals for the Second Circuit·Decided July 10, 2018·No. Docket No. 17-287-cr; August Term, 2017·Published·Cited by 27 cases

Opinion

POOLER, Circuit Judge:

*231Jose Jimenez pled guilty to possession of ammunition after having been dishonorably discharged from the military, in violation of 18 U.S.C. § 922(g)(6). Having properly objected at the district court and reserved his right to appeal, he now challenges the validity of Section 922(g)(6) under the Second Amendment. Assuming he is entitled to Second Amendment protection, we find that Section 922(g)(6) as applied to Jimenez withstands intermediate scrutiny. Accordingly, we AFFIRM the judgment of the district court.

BACKGROUND

On June 3, 2015, Jose Jimenez was arrested in unlawful possession of a bullet retrieved from his person following an attempted undercover firearms purchase. Jimenez had agreed to drive Oscar Sanchez to the parking lot of a fast food restaurant in the Bronx on June 3, 2015 in exchange for $40. Sanchez had arranged to sell 20 handguns to a person who was, in fact, an undercover detective from the New York Police Department ("NYPD"). Jimenez claims that Sanchez did not inform him of the purpose of the trip.

After arriving at the parking lot, the detective and Sanchez got out of their cars, whereupon Sanchez showed the detective a 9-millimeter handgun and transferred a black bag into the trunk of the detective's car. At the detective's request, Sanchez opened the bag. Inside was a box of Capri Sun and a carjack but no guns. No deal having been done, Sanchez removed the bag from the detective's trunk, got back in the car with Jimenez and an unnamed woman, and they drove away.

But that was not the end of the matter. As part of a plan with the undercover NYPD purchaser, two agents from the Department of Alcohol, Tobacco, and Firearms ("ATF") had followed Jimenez's car. After the sale did not occur, these agents ordered Jimenez to pull over several blocks from the parking lot. As the law enforcement officials approached the car, Sanchez removed a round from the chamber of his 9-millimeter handgun and handed it to Jimenez. The officials searched Jimenez's car, found Sanchez's weapon-which was loaded with 12 rounds of ammunition-and brought everybody to the ATF office in the Bronx for questioning. At the office, ATF agents patted down Jimenez and discovered the 9-millimeter round in his pocket.

Further investigation revealed that Jimenez had been dishonorably discharged from the Marines in 2012 after serving 18 months in a military prison for conspiracy to sell military property, wrongful disposition of military property, use and possession of a controlled substance, and conduct of a nature to bring discredit upon the armed forces, in violation of 10 U.S.C. §§ 881, 908, 912a, 934. He had been convicted of these offenses after confessing to using and dealing ecstasy and to possessing and selling firearms and night vision goggles that had been stolen from the military.

Federal law prohibits anybody who "has been discharged from the Armed Forces under dishonorable conditions" from possessing firearms or ammunition "in or affecting commerce." 18 U.S.C. § 922(g)(6). On July 6, 2015 Jimenez was arrested, and on July 28 he was indicted, for violating this law. In the district court, Jimenez filed a motion to dismiss the indictment challenging the constitutionality of Section 922(g)(6) under the Second Amendment. After the district court denied this motion, United States v. Jimenez , 15-cr-496, 2016 WL 8711451 (S.D.N.Y. June 3, 2016), he *232pled guilty pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, preserving his right to appeal the denial of his motion to dismiss. The district court sentenced him principally to three years' supervised release and entered judgment on January 11, 2017. Jimenez filed a notice of appeal the next day.

DISCUSSION

I. The Nature of the Challenge

The sole question in front of us is whether Jimenez's prosecution and conviction for possessing ammunition after having been dishonorably discharged violates the Second Amendment. Jimenez presents his argument as a facial challenge to the statute under which he was convicted, but it is not.

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United States v. Jimenez, 895 F.3d 228 (2d Cir. 2018).

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