United States v. Dayne Sitladeen, 64 F.4th 978

Background:

Dayne Sitladeen, a Canadian citizen unlawfully present in the U.S., was stopped in Minnesota with 67 firearms and multiple high‑capacity magazines and charged under 18 U.S.C. § 922(g)(5)(A).
He moved to dismiss, arguing § 922(g)(5)(A) violates the Second Amendment and the Fifth Amendment’s equal‑protection component; the district court denied the motion and Sitladeen pled guilty conditionally to preserve appeal rights.
The PSR placed him in Criminal‑History Category I, but the district court departed upward to Category III based on uncounted Canadian convictions and imposed a 78‑month sentence (above the guidelines range) after an upward variance under 18 U.S.C. § 3553(a).
The court declined to order whether the federal sentence would run concurrently with any future Canadian sentence, citing uncertainty about extradition and foreign proceedings.
Sitladeen appealed, challenging (1) the constitutionality of § 922(g)(5)(A) under the Second and Fifth Amendments, (2) the district court’s upward departure based on Canadian convictions, (3) the substantive reasonableness of his sentence, and (4) the court’s failure to order concurrency under Setser.

Issues:

Issue	Sitladeen's Argument	Government's Argument	Held
Whether § 922(g)(5)(A) violates the Second Amendment	Unlawfully present aliens are part of “the people” and thus entitled to Second Amendment protection	Flores controls: unlawfully present aliens are not "the people"; Bruen does not disturb Flores in this circuit	Denied. Court bound by Flores: § 922(g)(5)(A) does not implicate the Second Amendment for unlawfully present aliens
Whether § 922(g)(5)(A) violates the Fifth Amendment equal‑protection guarantee	Statute discriminates against unlawfully present aliens, burdens armed self‑defense, and warrants heightened scrutiny	Aliens unlawfully present are not a suspect class; the Second Amendment does not apply to them here, so rational‑basis review applies	Denied. Rational‑basis review applies and the statute is rationally related to public‑safety interests
Whether the district court erred in upward departure based on Canadian convictions	The court clearly erred in characterizing Sitladeen’s Canadian record as multiple illegal‑firearm convictions and violent/erratic behavior	The record documents multiple adult firearm‑related convictions and other offenses supporting the court’s findings	Denied. Findings not clearly erroneous; upward departure to CHC III was permissible
Whether the sentence (variance and concurrency) was unlawful or unreasonable; whether court could order concurrency under Setser	Variance excessive; court should have ordered federal sentence concurrent with anticipated Canadian sentence under Setser	Court considered § 3553(a) factors, recognized Setser, and permissibly declined to order concurrency given uncertainty; variance within discretion	Denied. Sentence substantively reasonable; court had and implicitly exercised discretion re: concurrency and did not abuse it

Key Cases Cited

United States v. Flores, 663 F.3d 1022 (8th Cir. 2011) (held Second Amendment protections do not extend to aliens unlawfully present)
United States v. Portillo‑Munoz, 643 F.3d 437 (5th Cir. 2011) (held unlawfully present aliens are not among “the people” protected by the Second Amendment)
District of Columbia v. Heller, 554 U.S. 570 (2008) (recognized an individual right to keep and bear arms)
McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporated the Second Amendment against the states)
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022) (established the historical‑tradition test for Second Amendment challenges)
Setser v. United States, 566 U.S. 231 (2012) (held courts may order federal sentences concurrent or consecutive to yet‑to‑be‑imposed state sentences)
Plyler v. Doe, 457 U.S. 202 (1982) (held unlawfully present aliens are “persons” entitled to Fifth Amendment protections)
Demore v. Kim, 538 U.S. 510 (2003) (recognized Congress’ broad authority to make different rules for aliens)