United States v. Lorenzo Garod Pierre

Opinion

USCA11 Case: 23-11604 Document: 38-1 Date Filed: 12/10/2024 Page: 1 of 10

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 23-11604 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LORENZO GAROD PIERRE,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:22-cr-20321-JEM-1 ____________________ USCA11 Case: 23-11604 Document: 38-1 Date Filed: 12/10/2024 Page: 2 of 10

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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before NEWSOM, ABUDU, and ANDERSON, Circuit Judges. PER CURIAM: We previously affirmed Lorenzo Pierre’s conviction for be- ing a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), reject- ing his argument that § 922(g)(1) was unconstitutional as applied to his case in light of N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). United States v. Pierre, No. 23-11604, 2024 WL 1070655 (“Pierre I”), at *1 (11th Cir.) (unpublished), vacated, __U.S.__, 2024 WL 4529801 (“Pierre II”), at *1 (Oct. 21, 2024) (mem.). In doing so, we concluded that Pierre’s argument was foreclosed by United States v. Dubois, 94 F.4th 1284, 1293 (11th Cir. 2024), which held that our prior precedent in United States v. Rozier, 598 F.3d 768 (11th Cir. 2010) (upholding the constitutionality of § 922(g)(1) in all circum- stances) “remain[ed] good law.” Pierre I, 2024 WL 1070655, at *1. In October 2024, the Supreme Court granted Pierre’s peti- tion for a writ of certiorari, vacated our judgment, and remanded the case for further consideration in light of United States v. Rahimi, 602 U.S. 680 (2024). Pierre II, __U.S. __, 2024 WL 4529801, at *1. Upon careful review, we reach the same conclusion and, again, af- firm Pierre’s conviction. To explain why, we briefly detail our rul- ings in Rozier and Dubois and the Supreme Court’s rulings in Bruen and Rahimi. USCA11 Case: 23-11604 Document: 38-1 Date Filed: 12/10/2024 Page: 3 of 10

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In Rozier, a defendant challenged his conviction under § 922(g)(1) as unconstitutional under District of Columbia v. Heller, 554 U.S. 570 (2008). 598 F.3d at 770-71. We rejected Rozier’s chal- lenge, however. Id. at 771. We explained that the “language [of Heller] suggest[ed] that statutes disqualifying felons from pos- sessing a firearm under any and all circumstances do not offend the Second Amendment.” Id. (citing Heller, 554 U.S. at 626-27). We noted: [S]tatutory restrictions of firearm possession, such as § 922(g)(1), are a constitutional avenue to restrict the Second Amendment right of certain classes of peo- ple. Rozier, by virtue of his felony conviction, falls within such a class. Therefore, the fact that Rozier may have possessed the handgun for purposes of self- defense (in his home), is irrelevant. Id. 1

1 Both before and after Bruen, we have applied Rozier to reject Second Amend-

ment challenges and, in doing so, have interpreted it as foreclosing as-applied challenges to the constitutionality of § 922(g)(1), albeit often in unpublished decisions. See, e.g., United States v. Cropper, 812 F. App’x 927, 931 (11th Cir. 2020) (unpublished) (“As Cropper acknowledges, we have held that statutes prohibiting felons from possessing firearms do not violate the Second Amend- ment.” (citing Rozier, 598 F.3d at 770)) (before Bruen); United States v. Jimenez- Shilon, 34 F.4th 1042, 1044 (11th Cir. 2022) (citing Rozier for the proposition that “certain groups of people . . . may be ‘disqualified from’ possessing arms without violating the Second Amendment” (quoting Heller, 554 U.S. at 635)) (before Bruen); United States v. Diaz, No. 21-11625, 2023 WL 8446458, at *2 (11th Cir. 2023) (unpublished) (“Statutes disqualifying felons from possessing a firearm under any and all circumstances do not offend the Second USCA11 Case: 23-11604 Document: 38-1 Date Filed: 12/10/2024 Page: 4 of 10

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In Bruen, the Supreme Court addressed a challenge to New York’s gun-licensing regime. 597 U.S. at 10-12. New York’s statu- tory scheme prohibited citizens from obtaining a license to carry firearms outside their home unless they proved “a special need for self-defense.” Id. at 11. “The [Supreme] Court ruled [New York’s statutory] scheme unconstitutional because ‘the Second and Four- teenth Amendments protect an individual’s right to carry a hand- gun for self-defense outside the home.’” Dubois, 94 F.4th at 1292 (quoting Bruen, 597 U.S. at 10). Bruen also rejected the second step of “a two-step test that then prevailed in most circuits” for analyz- ing Second Amendment challenges. Id. (citing Bruen, 597 U.S. at 15-25). 2 Instead, the Supreme Court explained, the proper standard for assessing whether a challenged firearm regulation is: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is con- sistent with the Nation’s historical tradition of fire- arm regulation. Only then may a court conclude that

Amendment.” (quoting Rozier, 598 F.3d at 771) (alteration adopted)) (after Bruen); United States v. Hyde, No. 22-10332, 2024 WL 726909, at *3 (11th Cir. 2024) (unpublished) (“Our conclusion in Rozier that § 922(g)(1) is a constitu- tional restriction on a defendant’s Second Amendment rights is still binding precedent, and we are bound to follow that panel’s decision.” (citing Rozier, 598 F.3d at 772)) (after Bruen). 2 We had “never actually applied the second, means-end-scrutiny step” of this

now-overruled two-step test. See Dubois, 94 F.4th at 1292 (citing Jimenez-Shi- lon, 34 F.4th at 1052-53 (Newsom, J., concurring)). USCA11 Case: 23-11604 Document: 38-1 Date Filed: 12/10/2024 Page: 5 of 10

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the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

Bruen, 597 U.S. at 24 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)). After Bruen, we rejected a defendant’s facial and as-applied challenges to the constitutionality of § 922(g)(1) in Dubois, a case where the defendant argued that Bruen had abrogated Rozier. 94 F.4th at 1291-93. After summarizing Heller, Bruen, and Rozier, we explained that the Supreme Court’s opinion in Bruen “left no doubt that it viewed its decision as a faithful application of Heller, not a departure from it.” Id. at 1292. We also noted that “Bruen, like Heller, [had] repeatedly described the [Second Amendment] right as extending only to ‘law-abiding, responsible citizens.’” Id. (quoting Bruen, 597 U.S. at 26). We then explained: Bruen did not abrogate Rozier. Because the Supreme Court made it clear in Heller that its holding did not cast doubt on felon-in-possession prohibitions, and because the Court made it clear in Bruen that its hold- ing was in keeping with Heller, Bruen could not have clearly abrogated [Rozier]. Indeed, the Bruen majority did not mention felons or section 922(g)(1). Dubois argues that we may depart from Rozier because Bruen abrogated all prior precedent relying on the two-step analysis. But Rozier upheld section 922(g)(1) on the threshold ground that felons are categorically disqual- ified from exercising their Second Amendment right under Heller. We interpreted Heller as limiting the right to law-abiding and qualified individuals and as USCA11 Case: 23-11604 Document: 38-1 Date Filed: 12/10/2024 Page: 6 of 10

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clearly excluding felons from those categories by re- ferring to felon-in-possession bans as presumptively lawful. And far from demolishing or eviscerating Rozier’s reliance on Heller, Bruen repeatedly stated that its decision was faithful to Heller. We require clearer instruction from the Supreme Court before we may reconsider the constitutionality of section 922(g)(1). Because Rozier binds us, Dubois’s challenge based on the Second Amendment necessarily fails.

Id. at 1293 (alterations adopted, internal citations and quotation marks omitted). 3 In Rahimi, decided after Dubois and Pierre’s initial appeal, the Supreme Court held that § 922(g)(8)—which prohibits firearm pos- session by individuals subject to a domestic violence restraining or- der—was constitutional because the provision comported with the principles underlying the Second Amendment. 602 U.S. at 692-700. In reaching that conclusion, the Supreme Court explained that “some courts [had] misunderstood the methodology” of its “recent Second Amendment cases.” Id. at 691. It clarified that Bruen does not require a regulation to have existed at the founding in an iden- tical form: instead, “[t]he law must comport with the principles un- derlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.’” Id. at 692 (quoting Bruen, 597 U.S. at 30).

3As noted above, shortly after we decided Dubois, we decided Pierre’s initial

appeal, concluding that his as-applied challenge to the constitutionality of § 922(g)(1) was foreclosed because we had recently determined, in Dubois, that Rozier was still binding precedent. Pierre I, 2024 WL 1070655, at *1. USCA11 Case: 23-11604 Document: 38-1 Date Filed: 12/10/2024 Page: 7 of 10

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The Supreme Court also reiterated that prohibitions on felons’ pos- session of firearms are “presumptively lawful.” Id. at 699 (quoting Heller, 554 U.S. at 626-27). It added that, in Heller, it had “recog- nized that the right [secured by the Second Amendment] was never thought to sweep indiscriminately.” Id. at 691. Additionally, it held that § 922(g)(8) was constitutional as applied to Rahimi because the restraining order to which he was subject included a finding that he posed “a credible threat to the physical safety” of another, and the government provided “ample evidence” that the Second Amendment permitted “the disarmament of individuals who pose a credible threat to the physical safety of others.” Id. at 693-701. The Court added that the restriction imposed on Rahimi’s rights by § 922(g)(8) was temporary because it applied only while he was subject to a restraining order. Id. at 699. Under the prior panel precedent rule, we are bound to fol- low prior binding precedent until it is overruled by the Supreme Court or this Court sitting en banc. United States v. White, 837 F.3d 1225, 1228 (11th Cir. 2016); United States v. Lee, 886 F.3d 1161, 1163 n.3 (11th Cir. 2018). “To constitute an ‘overruling’ for the purposes of this prior panel precedent rule, the Supreme Court decision ‘must be clearly on point.’” United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (quoting Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir. 2003)). “In addition to being squarely on point, the doctrine of adherence to prior prece- dent also mandates that the intervening Supreme Court case actu- ally abrogate or directly conflict with, as opposed to merely weaken, the holding of the prior panel.” Id. Thus, “[t]o abrogate USCA11 Case: 23-11604 Document: 38-1 Date Filed: 12/10/2024 Page: 8 of 10

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a prior-panel precedent, ‘the later Supreme Court decision must demolish and eviscerate each of its fundamental props.’” Dubois, 94 F.4th at 1293 (quoting Del Castillo v. Sec’y, Fla. Dep’t of Health, 26 F.4th 1214, 1223 (11th Cir. 2022), cert. denied, 143 S. Ct. 486). “So, for example, if our precedent relied on ‘a line of Supreme Court precedents that the [Supreme] Court itself emphasizes in a later decision is not implicated by that later decision,’ the Supreme Court’s intervening decision ‘cannot have’ abrogated our prece- dent.” Id. (alteration in original) (quoting Del Castillo, 26 F.4th at 1223). Of course, however, the Supreme Court does not have to directly cite our precedent to abrogate it. See id.; Edwards v. U.S. Att’y Gen., 97 F.4th 725, 743 (11th Cir. 2024), pet. for rehearing pend- ing, (No. 19-15077). With these principles in mind, we conclude that Rahimi, like Bruen, did not overrule or abrogate our decision in Rozier.4 As we

4 We recognize that other circuits have reached different results on whether

challenges to § 922(g)(1) are foreclosed because of pre-Bruen caselaw. See, e.g., United States v. Diaz, 116 F.4th 458, 465 (5th Cir. 2024) (“Bruen constitutes . . . a change [in law that] render[s] our prior precedent obsolete.” (internal citation and quotation omitted)); Range v. Att’y Gen, 69 F.4th 96, 106 (3d Cir. 2023) (en banc) (“[T]he Government’s contention that Bruen does not meaningfully affect this Court’s precedent, is mistaken . . . .” (internal citation and quotation omitted)), vacated sub nom. Garland v. Range, 144 S. Ct. 2706 (2024) (mem.). Ul- timately, however, it is the binding precedent of this Court and the Supreme Court which binds us, not the precedent of other circuits. Here, we held in Rozier that § 922(g)(1) is constitutional in all applications and the Supreme Court has not abrogated that precedent so we must apply it. See Walker v. Mortham, 158 F.3d 1177, 1188 (11th Cir. 1998) (“[A] decision of a prior panel cannot be overturned by a later panel.” (emphasis added)). USCA11 Case: 23-11604 Document: 38-1 Date Filed: 12/10/2024 Page: 9 of 10

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explained in Dubois, Rozier did not rely on the “two-step” Second Amendment analysis which other circuits used at that time. Du- bois, 94 F.4th at 1292. Thus, the reasoning in Dubois, in this respect, was not affected by Bruen’s overturning of this two-step procedure. See id. Rahimi, which upheld a challenged gun regulation as con- sistent with Bruen’s text-and-history test for Second Amendment regulations (or step-one under the previous two-step test) also did not “demolish and eviscerate each of [Rozier’s] fundamental props”; instead, it reinforces our conclusion that cases decided on “step one” remain binding. Dubois, 94 F.4th at 1293. That is be- cause Rahimi essentially performed the same analysis as we did in Rozier by analyzing whether the challenged regulation was “con- sistent with the principles that underpin our regulatory tradition” and “‘relevantly similar’ to laws that our tradition is understood to permit . . . .’” Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 29). In Rahimi, the result of that inquiry led the Supreme Court to conclude that certain historical laws—namely “surety and going armed laws”—established a “common sense” conclusion that “[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed” consistent with the Second Amendment. Id. at 698. In Rozier, we concluded that Heller’s statement that “‘nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons’” showed that “statutes disqualifying felons from possessing a firearm under any and all circumstances” were likewise consistent with tradition and constitutional under the Sec- ond Amendment. 598 F.3d at 771 (quoting Heller, 554 U.S. at 626). USCA11 Case: 23-11604 Document: 38-1 Date Filed: 12/10/2024 Page: 10 of 10

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Rahimi—like Bruen—also reiterated this same point from Heller and stated that prohibitions on felons’ possession of firearms are “presumptively lawful.” 602 U.S. at 699 (quoting Heller, 554 U.S. at 627 n.26). Accordingly, Rozier binds us because neither Bruen nor Rahimi can fairly be read to reject, abrogate, or even call into question the portion of Heller which we relied on in Rozier. Compare Heller, 554 U.S. at 626-27 (“[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the posses- sion of firearms by felons and the mentally ill . . . .”), with Rahimi, 602 U.S. at 699 (similar); and Bruen, 597 U.S. at 30 (noting Heller’s “discussion of ‘longstanding laws’” for which the Supreme Court was “aware of no dispute[] regarding . . . lawfulness” under the Second Amendment); see also Rozier, 598 F.3d at 770-71 (citing Hel- ler, 554 U.S. at 626-27). 5 We reiterate what we said in Dubois: “[w]e require clearer instruction from the Supreme Court before we may reconsider the constitutionality of section 922(g)(1).” Dubois, 94 F.4th at 1293. Be- cause neither Bruen nor Rahimi overruled, or abrogated to the point of overruling, our caselaw that forecloses Pierre relief, we affirm. AFFIRMED.

5 Affirmance here also prevents us from reading a decision of the Supreme

Court (Rahimi) that upheld one part of a statute, § 922(g)(8), as constitutional, to render another portion of the same statute, § 922(g)(1), to be unconstitu- tional.