UNITED STATES OF AMERICA v. MATTHEW RYAN HUNT
No. 22-4525
United States Court of Appeals for the Fourth Circuit
December 18, 2024
PUBLISHED
Argued: October 30, 2024
Decided: December 18, 2024
Before WYNN, HARRIS, and HEYTENS, Circuit Judges.
Affirmed by published opinion. Judge Heytens wrote the opinion, which Judge Wynn and Judge Harris joined.
ARGUED: Stephen J. van Stempvoort, MILLER JOHNSON, Grand Rapids, Michigan, for Appellant. Mahogane Denea Reed, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Nicole M. Argentieri, Principal Deputy Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; William S. Thompson, United States Attorney, Jeremy B. Wolfe, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
TOBY HEYTENS, Circuit Judge:
In United States v. Canada, No. 22-4519, 2024 WL 5002188 (4th Cir. Dec. 6, 2024), this Court reaffirmed that
Before the Supreme Court‘s decisions in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 144 S. Ct. 1889 (2024), this Court held that a person who has been convicted of a felony cannot make out a successful as-applied challenge to
I.
In late 2021—after the Supreme Court‘s groundbreaking decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), but before Bruen or Rahimi—a grand jury charged Hunt with violating
In May 2022—the month before the Supreme Court decided Bruen—Hunt pleaded guilty without raising a Second Amendment challenge. On appeal, however, Hunt argues that
II.
The parties disagree about the standard of review for Hunt‘s constitutional challenge. When properly preserved, this Court generally reviews constitutional claims de novo. See, e.g., United States v. Pruess, 703 F.3d 242, 245 (4th Cir. 2012). But matters change when a defendant fails to timely raise an issue before the district court. In that situation, reviewing courts typically apply the more government-friendly plain-error doctrine. See, e.g., United States v. Olano, 507 U.S. 725, 733–34 (1993).
In his opening brief—which was filed after Bruen but before Rahimi—Hunt spends several pages arguing the plain-error standard is inapplicable despite his admitted failure to raise a Second Amendment argument in the district court. He relies on Class v. United States, 583 U.S. 174 (2018), which held that even an unconditional guilty plea does not “bar a criminal defendant from later appealing his conviction on the ground that the statute of conviction violates” the Second Amendment. Id. at 176. In Hunt‘s view, “[t]he same principles that motivated the decision in Class militate against finding forfeiture here.” Hunt Br. 13. In contrast, the government‘s response brief—also filed before Rahimi—ignores that argument and simply asserts, in a single conclusory sentence, that the plain-error standard applies. See Gov‘t Br. 12.
After briefing was complete, this Court held the case in abeyance pending a decision in another case involving a facial challenge to
In his supplemental brief, Hunt notes that the government never responded to his argument that the plain-error standard does not apply here. Hunt also points out that the Ninth Circuit agreed with his view in its since-vacated opinion in United States v. Duarte, 101 F.4th 657 (2024), vacated and reh‘g en banc granted, 108 F.4th 786 (9th Cir. 2024) (mem.). In its supplemental brief, the government finally engages with Hunt‘s standard of review argument, contending in two brief paragraphs that Hunt‘s assertions improperly conflate waiver (the issue in Class) and forfeiture (the issue here), and that they conflict with the Supreme Court‘s consistent refusal to recognize a futility exception to plain-error review.
This is not how things are supposed to work. In the typical case—that is, one without a supplemental briefing order—the government‘s failure to respond to an argument featured prominently in an opening brief would have deprived this Court of an adversarial presentation about a disputed legal issue. True, there was a supplemental briefing order here. But we did not permit supplemental briefing to hear further argument about the relevance of Class—a decision that was already more
We think the prudent course is to assume—solely for the sake of argument—that the plain-error standard does not apply here and that we review Hunt‘s constitutional claims de novo. We have often taken that approach when the standard of review is disputed, see, e.g., United States ex rel. Doe v. Credit Suisse AG, 117 F.4th 155, 160–61 (4th Cir. 2024); Bowman v. Stirling, 45 F.4th 740, 752–53 (4th Cir. 2022); United States v. Davis, 184 F.3d 366, 372 n.7 (4th Cir. 1999), and neither party challenges our authority to do so. Such a course seems particularly warranted here, both because the briefing about the standard of review leaves much to be desired and a report by the federal rules advisory committee specifically flags—but does not purport to resolve—questions about the proper relationship between
III.
Turning to the merits, we reject Hunt‘s facial and as-applied Second Amendment challenges. A panel of this Court has held that
We also reject Hunt‘s as-applied challenge. First, we conclude that neither Bruen nor Rahimi abrogates this Court‘s precedent foreclosing as-applied challenges to
A.
“[A] panel of this court is bound by prior precedent from other panels” and may not overturn prior panel decisions unless there is “contrary law from an en banc or Supreme Court decision.” Taylor v. Grubbs, 930 F.3d 611, 619 (4th Cir. 2019) (quotation marks removed). “We do not lightly presume that the law of the circuit has been overturned.” Id. Instead, “[a] Supreme Court decision overrules or abrogates our prior precedent only if our precedent is impossible to reconcile with” that decision. Short v. Hartman, 87 F.4th 593, 605 (4th Cir. 2023) (quotation marks removed; emphasis added). “If it is possible for us to read our precedent harmoniously with Supreme Court precedent, we must do so.” Id. (quotation marks removed).
Neither the Second Amendment nor Bruen are immune from these general rules. To the contrary, our en banc Court
The first relevant pre-Bruen decision is United States v. Moore, 666 F.3d 313 (4th Cir. 2012), which rejected facial and as-applied challenges to
To be sure, Moore left open the “possibility” that some hypothetical challenger could “rebut the presumptive lawfulness of § 922(g)(1) as applied” to that person. 666 F.3d at 320. But this Court‘s later decisions repeatedly rejected such challenges, including those brought by “allegedly non-violent felons.” Pruess, 703 F.3d at 247; see United States v. Smoot, 690 F.3d 215, 221–22 (4th Cir. 2012). And this Court ultimately held “[a] felon cannot be returned to the category of ‘law-abiding, responsible citizens’ for the purposes of the Second Amendment . . . unless the felony conviction is pardoned or the law defining the crime of conviction is found unconstitutional or otherwise unlawful,” thus foreclosing the vast majority of as-applied challenges. Hamilton, 848 F.3d at 626.
Those decisions are neither impossible to reconcile with Bruen and Rahimi nor rest on a mode of analysis that has been rendered untenable by them. This Court‘s post-Heller and pre-Bruen decisions relied on two strands of authority to reject as-applied challenges to
Far from abandoning Heller‘s language about “longstanding” and “presumptively lawful” restrictions on felons possessing firearms, the Supreme Court has repeatedly reaffirmed its applicability. Two years after Heller, the plurality opinion in McDonald v. City of Chicago, 561 U.S. 742 (2010), described Heller as making “clear . . . that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill‘” and again “repeat[ed] those assurances.” Id. at 786 (quoting Heller, 554 U.S. at 626). The Court‘s opinion in Bruen did not repeat those assurances.
The same is true about this Court‘s pre-Bruen conclusion that people who have been convicted of felonies are outside the group of “law-abiding responsible citizen[s]” that the Second Amendment protects. Moore, 666 F.3d at 319; accord Hamilton, 848 F.3d at 626. To be sure, Bruen later disavowed the second step of this Court‘s former two-part test for considering Second Amendment challenges as “one step too many.” 597 U.S. at 19 (rejecting “means-end scrutiny“). But Bruen also described the first step of our former test as “broadly consistent with Heller.” Id. And our en banc Court has concluded that Bruen “did not disturb” the analysis this Court conducted under that “first step,” including holdings about whether a given situation is “outside the ambit of the individual right to keep and bear arms.” Bianchi, 111 F.4th at 448 (quotation marks removed).
Because Bruen rejected only one step of our former two-part test, the distinction between different types of pre-Bruen decisions matters. Moore did not rely on any sort of “means-end scrutiny” in rejecting the defendant‘s Second Amendment challenge. Bruen, 597 U.S. at 19. Instead, it held the defendant‘s conduct was “plainly outside the scope of the Second Amendment.” Moore, 666 F.3d at 320. So too in Pruess, which said the defendant‘s “conduct lies outside the scope of the Second Amendment‘s protection” and rejected the defendant‘s assertion “that historical sources weigh in his favor.” 703 F.3d at 246 & n.3. And again in Hamilton, which never discussed means-end scrutiny and resolved the case at “step one” of this Court‘s former test. 848 F.3d at 627. Bruen and Rahimi thus provide no basis for a panel to depart from this Court‘s previous rejection of the need for any case-by-case inquiry about whether a felon may be barred from possessing firearms. See Hamilton, 848 F.3d at 626–29.
B.
What we have said so far is enough to reject Hunt‘s as-applied Second Amendment challenge. But even if we were deciding this case unconstrained by this Court‘s pre-Bruen precedent, Hunt‘s challenge would still fail. Under Bruen, courts must first consider whether “the challenged law regulates activity falling outside the scope of the [Second Amendment] right as originally understood.” 597 U.S. at 18 (quotation marks removed). If the law regulates activity protected by the right, “the government must demonstrate that the regulation is consistent with this Nation‘s historical tradition of firearm regulation.” Id. at 17. We conclude Hunt‘s as-applied challenge fails both parts of that test.
Our en banc Court recently concluded “the limitations on the scope of the Second Amendment right identified in Heller” are properly assessed as part of Bruen‘s first step because those limitations “are inherent in the text of the amendment.” United States v. Price, 111 F.4th 392, 401 (4th Cir. 2024) (en banc). The proper inquiry, Price explained, requires us to “look[] to the historical scope of the Second Amendment,” and use that history to interpret what is and is not protected by the constitutional text. Id.
Heller repeatedly described the core of the Second Amendment right as protecting “law-abiding” citizens. 554 U.S. at 625, 635. In contrast, Heller made clear that restrictions on firearms possession by those who are not law-abiding—i.e., felons—are “presumptively lawful.” Id. at 626, 627 n.26. These limitations arise from the historical tradition. See id. at 626 (referring to prohibitions on felons possessing firearms as “longstanding“); id. at 625 (“For most of our history . . . the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens.” (emphasis added)). Taken together, Heller instructs that the “pre-existing right” “codified” in the Second Amendment protects firearms possession by the law-abiding, not by felons. Id. at 592.
Nothing in Bruen or Rahimi alters this reading of Heller. As for Bruen, our en banc Court has already held that “[n]othing in Bruen abrogated Heller‘s extensive discussion of the contours of the scope of the right enshrined in the Second Amendment.” Price, 111 F.4th at 400. The same is true of Rahimi, which pointedly repeated Heller‘s statement that “prohibitions . . . on the possession of firearms by ‘felons and the mentally ill,’ are ‘presumptively lawful.‘” Rahimi, 144 S. Ct. at 1902 (quoting Heller, 554 U.S. at 626, 627 n.26). We thus conclude that
2.
Even if
Like the Eighth Circuit, we “conclude that legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms” and that “Congress acted within the historical tradition when it enacted § 922(g)(1).” United States v. Jackson, 110 F.4th 1120, 1129 (8th Cir. 2024). In canvassing the historical record, the Eighth Circuit identified “two schools of thought” justifying regulations restricting felons from possessing firearms. Id. at 1126. One justification is that “legislatures traditionally possessed discretion to disqualify categories of people from possessing firearms to address a danger of misuse by those who deviated from legal norms.” Id. at 1127. The second is that legislatures had the ability to disarm particular people “to address a risk of dangerousness,” which readily attaches to people who have already been found guilty of having broken the law. Id. We agree that “either reading” of the relevant history “supports the constitutionality of § 922(g)(1) as applied to [Hunt] and other convicted felons.” Id. at 1126.
To begin, the historical record contains ample support for the categorical disarmament of people “who have demonstrated disrespect for legal norms of society.” Jackson, 110 F.4th at 1127. Early legislatures regularly punished felons and other non-violent offenders with estate forfeiture or death—far greater punishments that “subsumed disarmament.” Id. Indeed, “[t]he idea of felony [was] so generally connected with that of capital punishment,” it was “hard to separate them.” 4 William Blackstone, Commentaries 98 (1st ed. 1769).
Hunt insists this point proves too much because “[f]elons don‘t lose other rights guaranteed in the Bill of Rights even though an offender who committed the same act in 1790 would have faced capital punishment.” Hunt Suppl. Br. 10 (quotation marks removed). That argument cannot be squared with Rahimi, which also relied on a greater-includes-the-lesser theory in holding that “if imprisonment was permissible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarmament . . . is also permissible.” 144 S. Ct. at 1902. As the Supreme Court has explained, the Second Amendment “codified a pre-existing right.” Heller, 554 U.S. at 592. And “it is difficult to conclude that the public, in 1791, would have understood someone facing death and estate forfeiture to be within the scope of those entitled to possess arms,” Medina v. Whitaker, 913 F.3d 152, 158 (D.C. Cir. 2019), even though the same person may have continued to enjoy certain other constitutional protections.
At any rate, there is more. Colonial-era offenders who committed non-violent hunting offenses were ordered to forfeit their firearms. See, e.g., Act of Oct. 9, 1652, Laws and Ordinances of New Netherlands 138 (1868) (forbidding partridge and game hunting “on pain of forfeiting the gun“). And a contemporaneous source that Heller described as “highly influential,” 554 U.S. at 604, maintained people should have a right to bear arms “unless for crimes committed, or real danger of public injury from individuals.” 2 Bernard Schwartz, The Bill of Rights: A Documentary History 665 (1971) (emphasis added) (quoting “the highly influential minority proposal in Pennsylvania” discussed in Heller).
English and colonial American governments also enacted other types of categorical bans on the possession of firearms by those who refused to follow less formal legal norms. Governments disarmed “non-Anglican Protestants who refused to participate in the Church of England,” “people who refused to declare an oath of loyalty,” and others. Jackson, 110 F.4th at 1126. True, many of these specific prohibitions would today be understood to violate other constitutional restrictions. But those examples remain “relevant here in determining
Hunt insists the evidence that the founding generation disarmed felons is mixed at best. But Hunt‘s argument commits the same mistake the Supreme Court identified in Rahimi—insisting on a historical “twin” rather than an “analogue.” 144 S. Ct. at 1903. To evaluate whether a historical analogue justifies a modern regulation, we consider “[w]hy and how the regulation burdens the right.” Id. at 1898. And here, both the why (whether “modern and historical regulations” impose a “burden” on the Second Amendment right that was “comparably justified“) and the how (whether the regulations “impose a comparable burden on the right of armed self-defense“) support
When asked about this point at oral argument, Hunt worried about allowing legislatures to make certain conduct a felony and then prohibiting people from exercising their otherwise constitutionally protected right to possess a firearm for having engaged in that conduct. See Oral Arg. 31:40–33:55. We agree the power to determine the content of the criminal law is serious business. But legislatures have always had that power, and it is subject to few constitutional constraints. And there is no doubt that legislatures can subject people found to have engaged in serious criminal conduct to consequences the Constitution would otherwise forbid, including—most notably—deprivations of “life, liberty, or property.”
Our conclusion that
Based on this history, we conclude that
IV.
Hunt‘s final argument involves his sentence. The Federal Sentencing Guidelines call for a four-level increase in a defendant‘s base offense level if that defendant “used or possessed any firearm or ammunition in connection with any other felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The district court applied that enhancement here. It first found it “more likely so than not that [Hunt] fired [a] gun . . . inside an apartment building, while under the influence of controlled substances during a domestic violence incident, with another person present in the apartment.” JA 61. The court further concluded that Hunt‘s conduct “constitute[d] wanton endangerment” under West Virginia law. Id. “In assessing a challenge to a sentencing court‘s application of the Guidelines, we review the court‘s factual findings for clear error and its legal conclusions de novo.” United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006).
Hunt does not challenge the district court‘s legal conclusion that the conduct described in the factual findings is an “act with a firearm which creates a substantial risk of death or serious bodily injury to another.”
We are unpersuaded. For one thing, there was significant evidence that someone fired a gun: a neighbor heard gunshots from Hunt‘s apartment just minutes before the police arrived; officers found bullet casings on the floor of the apartment; and tests revealed gunshot residue on both Hunt and the other person in his apartment. Further, if somebody fired a gun, there was significant evidence that it was Hunt. When officers entered the apartment, the gun was lying on the bed next to Hunt and a bullet casing was on the bedroom floor. The other person in the apartment was unconscious in a different room. What is more, Hunt later seemed to admit that he had, in fact, fired the gun, asking the other person who had been in the apartment during a recorded phone call: “What was I shooting at? I didn‘t shoot at
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The district court‘s judgment is
AFFIRMED.