UNITED STATES OF AMERICA v. ZACKEY RAHIMI
No. 21-11001
United States Court of Appeals for the Fifth Circuit
September 12, 2024
Lyle W. Cayce, Clerk.
Before JONES, HO, and WILSON, Circuit Judges.
This case is before us on remand from the Supreme Court. The district court and a prior panel of this court rejected Zackey Rahimi‘s facial challenge to
The facts of this case are well-recounted in this court‘s prior opinions, e.g., 61 F.4th at 448–50, so we do not recite them again here. In his appeal, Rahimi raised only two issues: his facial challenge to
With Rahimi‘s constitutional challenge settled, we briefly discuss his sentencing claim. Weighing the facts underlying Rahimi‘s federal and state offenses against the Guidelines, the district court concluded that the conduct underlying his state offenses was not “relevant conduct” under
This court initially addressed—and rejected—Rahimi‘s contention that the district court erred when it ordered his federal sentence to run consecutively with any sentences imposed as a result of pending state-court charges. Post-Bruen, we did
A district court has the discretion to order its sentences of imprisonment to be served concurrently or consecutively to anticipated state terms of imprisonment. Setser v. United States, 566 U.S. 231, 236 (2012). The sentencing court‘s determination of what constitutes relevant conduct is a factual finding that is reviewed for clear error. United States v. Barfield, 941 F.3d 757, 761 (5th Cir. 2019). A determination of relevant conduct is “not clearly erroneous as long as [it is] ‘plausible in light of the record as a whole.‘” United States v. Ortiz, 613 F.3d 550, 557 (5th Cir. 2010) (quoting United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009)).
Rahimi argues that his four state charges “stem[] from conduct dealing with firearms and domestic violence,” such that “all of them are relevant conduct” to his federal offense. Thus, he maintains, his federal and state sentences should run concurrently, rather than consecutively. But the record as a whole plausibly supports the district court‘s finding that Rahimi‘s pending state charges involve alleged conduct not part of the same course of conduct as Rahimi‘s possession of a firearm in violation of a restraining order (and thus in violation of
We AFFIRM Rahimi‘s conviction and sentence. Appellant shall have fourteen days after entry of this opinion to file any petition for rehearing. See
JAMES C. HO, Circuit Judge, concurring:
The Supreme Court can adjust or amend its own precedents at its discretion. Inferior courts have no such luxury. The Supreme Court has repeatedly instructed us to follow its precedents, whether we agree with them or not—and whether we expect the Court itself to follow them or not. See, e.g., Rodriguez de Quijas v. Shearson/Am. Exp., 490 U.S. 477, 484 (1989); Agostini v. Felton, 521 U.S. 203, 237 (1997); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); United States v. Hatter, 532 U.S. 557, 567 (2001).
So we‘d be defying the Court‘s express command if we decided cases based on anticipated changes to its precedents. It‘s up to the Court to modify or overrule its own precedents, as it alone deems appropriate—and to reverse us when it does. See, e.g., Jackson Women‘s Health Org. v. Dobbs, 597 U.S. 215 (2022), rev‘g 945 F.3d 265 (5th Cir. 2019).
That‘s exactly what happened here. We faithfully applied the Court‘s decision in N.Y. State Rifle & Pistol Ass‘n, Inc. v. Bruen, 597 U.S. 1 (2022). See United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023). No member of our court disagreed with our interpretation or application of Bruen. As one of our distinguished colleagues put it, our job is not to relitigate Bruen, but to “operat[e] in good faith” and “faithfully implement Bruen.” United States v. Daniels, 77 F.4th 337, 357–58 (5th Cir. 2023) (Higginson, J., concurring).
The Court has now modified Bruen—as our decision today explains. See United States v. Rahimi, 602 U.S. _ (2024), rev‘g 61 F.4th 443; ante, at 2 n.1. I write separately to note a second alteration to Court precedent. In the past, the Court has held
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Violent criminals should be disarmed, detained, prosecuted, convicted, and incarcerated. See Rahimi, 61 F.4th at 463 (Ho, J., concurring). No doubt that‘s what Congress had in mind when it enacted
The National Association of Criminal Defense Lawyers and the Bronx Defenders Union, for example, noted that “the Government tries to assure this Court that states are foolproof in issuing orders of protection,” but that “[t]his could not be further from the truth.” Brief of The Bronx Defenders Union and National Association of Criminal Defense Lawyers as Amici Curiae in Support of Respondent, at 4, United States v. Rahimi, No. 22–915 (2024). “In our experience, the net of orders of protection is so big that it frequently entangles ... the actual victims in the relationships.” Id. (emphasis added). “The Government does not address the reality that states frequently get it wrong“—namely, by “arresting the wrong partner.” Id. at 4-5.
The California Public Defenders Association and the Alameda County Public Defenders expressed the same concerns. They observed that “[t]here is almost no incentive to deny a petitioner a restraining order.” Brief of Amici Curiae Alameda County Public Defenders and California Public Defenders Association in Support of Respondent, at 33, United States v. Rahimi, No. 22–915 (2024). “[T]rial judges are often personally invested in being overly cautious.” Id. “We have observed firsthand how mutual restraining orders are prone to manipulation and weaponization of a very important process, not to mention disarming the victim of domestic violence.” Id. at 34 (emphasis added).
Other amici identified similar issues. See, e.g., Brief of Amici Curiae Phyllis Schlafly Eagles and Eagle Forum Education & Legal Defense Fund in Support of Respondent, at 3-4, United States v. Rahimi, No. 22-915 (2024) (“It has long been common knowledge that restraining orders are used by lawyers for strategic advantage, rather than for genuine safety concerns.“).
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The message of these amici is simple:
On the other hand, Zackey Rahimi is by all accounts a dangerous person who should be in prison. So should we decline to hear his claim, and wait to address the problems with
Well, consider what the Court did in Lopez. Like Rahimi, Lopez is a dangerous person. Lopez was paid to bring a gun to school “so that he . . . could deliver it after school to ‘Jason,’ who planned to use it in a
The same logic applies here. As counsel for Rahimi explained:
Ours is a facial challenge in the way that Lopez was a facial challenge, where the facts of Lopez were clearly within Congress‘s power under the Commerce Clause. This Court found the facts of that case were Person A was going to pay Lopez $40 to give that gun to Person C after school.
That‘s within the commerce power, but the statute itself was not within Congress‘s power to enact. And so that statute failed as it then existed, the pre-amendment version of the Gun-Free School Zones Act, on its face.
Oral Arg. Tr. at 64, United States v. Rahimi, No. 22–915 (2024).
As noted, Lopez involved a claim under the Commerce Clause, not the Second Amendment. But the Court has repeatedly instructed that “[t]he constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.‘” Bruen, 597 U.S. at 70 (quoting McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion)). So our court dutifully decided Rahimi‘s claim.
The Supreme Court has now decided Rahimi. The decision does not mention Lopez, and it does not allow Rahimi to litigate the sincere concerns expressed by various amici curiae, judges, scholars, and practitioners. It does acknowledge the “potential faults” with
I accordingly agree that we should affirm.