United States v. Diego Lopez
929 F.3d 783
6th Cir.2019Background
- Diego Lopez entered the U.S. unlawfully as a child, later received DACA deferred-action relief in January 2017, and three months later was arrested; officers found two firearms in his vehicle.
- A federal grand jury indicted Lopez under 18 U.S.C. § 922(g)(5)(A) for being an alien "illegally or unlawfully in the United States" in possession of a firearm.
- Lopez moved to dismiss, arguing (1) § 922(g)(5)(A) was unconstitutionally vague as applied because DHS guidance (including DACA FAQs) created uncertainty about whether deferred-action recipients are "lawfully present," and (2) he lacked the requisite knowledge of unlawful status (raised on appeal).
- The district court agreed the statute was vague as applied and dismissed the indictment; the government appealed.
- The Sixth Circuit considered whether Congress’s language in § 922(g)(5)(A) is sufficiently definite, whether DACA or related statutes/regulatory guidance altered Lopez’s statutory status, and whether agency FAQs can render a clear statute vague.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 922(g)(5)(A) is unconstitutionally vague as applied to a DACA recipient | Lopez: DHS guidance/FAQs make it unclear whether deferred-action recipients are "lawfully present," so statute is vague as applied | Gov: Congress clearly proscribed possession by aliens "illegally or unlawfully in the United States," and Congress, not the Executive, defines criminal conduct | Reversed: statute is not unconstitutionally vague; Congress’s language is clear and governs, agency FAQs cannot create vagueness |
| Whether DACA or § 1182(a)(9)(B)(ii) makes a DACA recipient "lawfully present" for § 922(g)(5)(A) purposes | Lopez: statutory text and DHS statements mean deferred-action recipients are treated as lawfully present for certain purposes | Gov: § 1182(a)(9)(B)(ii) applies only "for purposes of this paragraph" (inadmissibility), and the Secretary expressly said DACA confers no substantive status; DACA is prosecutorial discretion only | Held: DACA/§ 1182(a)(9)(B)(ii) do not convert status to lawful for § 922(g)(5)(A); Lopez remained "illegally or unlawfully" in U.S. for that statute |
| Whether DHS FAQs can alter the meaning of a criminal statute or render it vague | Lopez: DHS FAQ language saying DACA recipients are "considered by DHS to be lawfully present" creates ambiguity | Gov: Agency FAQs cannot rewrite or create ambiguity in a clear criminal statute; only Congress defines crimes | Held: Agency FAQs cannot create constitutional vagueness where statutory text is clear |
| Whether the government must allege Lopez knew his unlawful status (mens rea) under § 922(g)(5)(A) | Lopez (raised on appeal): under Rehaif, defendant must know unlawful status, so indictment may be insufficient | Gov: (not resolved on merits here) | Held: Court remanded for district court to address whether the indictment adequately alleges the Rehaif knowledge element |
Key Cases Cited
- F.C.C. v. Fox Television Stations, 567 U.S. 239 (2012) (void-for-vagueness doctrine prohibits impermissibly vague laws)
- Kolender v. Lawson, 461 U.S. 352 (1983) (criminal statutes must give ordinary people notice and minimal guidelines for enforcement)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (separation-of-powers vagueness concerns when statute delegates law-defining to other branches)
- Rehaif v. United States, 139 S. Ct. 2191 (2019) (knowledge-of-status is an element under § 922(g))
- SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348 (2018) (agency action cannot create ambiguity when statutory text is clear)
- United States v. Hart, 635 F.3d 850 (6th Cir. 2011) (standard of review for vagueness challenges)
- United States v. Arrieta, 862 F.3d 512 (5th Cir. 2017) (interpreting "illegally or unlawfully in the United States" as without authorization)
- United States v. Davis, 139 S. Ct. 2319 (2019) (only Congress may write new federal criminal laws)
- Maldonado v. Nat’l Acme Co., 73 F.3d 642 (6th Cir. 1996) (principle that appellate court may remand for district court to address factual or pleading issues)