M. HANNAH LAUCK, District Judge.
This matter comes before the Court on Defendant Mohamed Abdellahi Mohamed Horma's Motion to Dismiss Counts Three and Four of the Indictment (the "Second Motion to Dismiss"). (ECF No. 53.) The United States responded, (ECF No. 58), and Horma replied, (ECF No. 59). On November 20, 2018, the Court held an evidentiary hearing and heard arguments on the Second Motion to Dismiss (the "November 2018 Evidentiary Hearing"), during which the parties referred to stipulations and presented exhibits provided to the Court. Each of the parties also filed post-hearing memoranda. (ECF Nos. 72, 73.) The Second Motion to Dismiss is ripe for disposition. For the reasons discussed below, the Court will deny the Second Motion to Dismiss.
The Court assumes familiarity with its September 4, 2018 Memorandum Opinion and Order ("Horma I"), (ECF Nos. 45, 46), in which it denied Horma's Motion to Dismiss Counts One Through Four of the Superseding Indictment (the "First Motion to Dismiss"), (ECF No. 14). United States v. Horma ("Horma I"), No. 3:18cr18, 2018 WL 4214136 (E.D. Va. Sept. 4, 2018).
Horma, born in Morocco and a citizen of Mauritania, came to the United States on December 29, 2013,
On April 16, 2014, the Asylum Office Director sent Horma a "Notice of Intent to Deny" (the "NOID"), expressing an intent to deny Horma's Asylum Application and articulating why. On May 13, 2014, Horma, through counsel, submitted a rebuttal responding to the reasons articulated in the NOID for the intended denial, and including additional information. On September 17, 2015, Horma received a Notice to Appear to demonstrate why he should not be removed from the United States. The Notice to Appear included notification to Horma that he was "removable" as a non-citizen who overstayed his tourist (nonimmigrant) visa and remained in the United States "without authorization." (Not. Appear 1, ECF No. 41-4.) The Notice to Appear also ordered Horma to "appear before an immigration judge" to show cause why he should not be removed from the United States, but it did not set a date for Horma's hearing, noting it only as "TBD," or to be determined. (Id.)
On September 21, 2015, USCIS issued a Referral Notice stating that, "after careful consideration," Horma's Asylum Application was not deemed credible. (Stip. 8; Referral Not. 1.) The Referral Notice also advised Horma that his Asylum Application was referred to an immigration judge who would independently consider it. The Referral Notice stated in bold:
Pursuant to 8 U.S.C. § 1158(d)(2),
On July 13, 2016, Horma claimed to work as a driver for Uber and that he previously worked at the "Itialian [sic] Kitchen Restaura[nt]." (Gov't Ex. 14 "District Court of Maryland for Howard County Initial Appearance Questionnaire" 1.) Although it appears Horma never worked for either of these establishments, the evidence shows that he worked in the cigarette wholesale business.
During the November 2018 Evidentiary Hearing, the United States presented the testimony of Federal Bureau of Investigation forensic accountant Stacy Young, who testified that Horma
During the same November 2018 Evidentiary Hearing, Lieutenant Bodenhamer of the Henrico Police Department testified to his knowledge of Horma and the businesses with which Horma had associated himself.
On July 13, 2016, while Horma's Asylum Application was pending, he was arrested in Howard County, Maryland, and charged with: (1) shipping, importing, selling into or within, or transporting into Maryland cigarettes or other tobacco products on which the tobacco tax had not been paid, in violation of Maryland Tax Code § 13-1015(a)
The evidence shows that, on September 21, 2016, Horma visited Colonial Shooting Academy
The evidence also shows that, on November 12, 2016, Horma and another individual, Malik Sidya, traveled to the War Store. During that visit, both men entered the store and Sidya bought a Smith & Wesson M&P 9 mm handgun bearing serial number HVK3499. After the purchase, the men returned to Horma's apartment with the firearm.
Finally, in November 2016, police executed a search warrant for Horma's residence. During execution of the warrant, police found the Smith & Wesson handgun in Horma's bedroom dresser with papers bearing his name. Horma admitted in a post-Miranda interview that the gun belonged to Sayid "and he didn't trust [Sayid] with the gun, so [Horma] put it in his room." (Tr. 123; see also 2d Mot. Dismiss 4.) Horma also admitted that "he came up with the idea to purchase the firearm," but could not do so himself because "he did not have a `green card.'"
On February 20, 2018, a federal grand jury in the Eastern District of Virginia returned a five-count Indictment, (ECF No. 9), and on May 15, 2018, returned a five-count Superseding Indictment,
On March 27, 2018, Horma moved to dismiss Counts One through Four of the Superseding Indictment in the First Motion to Dismiss. As to Counts One and Two, Horma contended that the charges should be dismissed because he does not qualify as "an alien . . . illegally or unlawfully in the United States," as set forth in 18 U.S.C. § 922(g)(5)(A) because he "has only ever been present in the United States on a valid visa, or later under a period of authorized stay due to a pending bona fide asylum application." (1st Mot. Dismiss 1-2, ECF No. 14.) As to Counts Three and Four, Horma argued that the Maryland Indictment could not support a charge under 18 U.S.C. § 922(n) because the crime for which he was under indictment did not constitute "a crime punishable by imprisonment for a term exceeding one year," 18 U.S.C. § 922(n), as that phrase is defined in 18 U.S.C. § 921(a)(20). (Id.) Horma argued in the alternative that § 922(n) was void for vagueness and that it amounted to an unconstitutional infringement of his rights under the Second Amendment to the United States Constitution.
On September 4, 2018, this Court denied the First Motion to Dismiss. The Court concluded that Horma's challenge to Counts One and Two failed because the parties did not brief the proper legal issues or provide determinative factual evidence. Title 18, Section 922(g)(5)(A) prohibits someone who "is illegally or unlawfully in the United States" from possessing a firearm. 18 U.S.C. § 922(g)(5)(A). USCIS policies and provisions distinguish between a person's immigration status and the lawfulness of his or her presence in the United States.
Because the parties failed to identify this critical distinction, they also neglected to develop the record necessary to make this fact-specific determination. Despite the Court's specific request to identify the date of Horma's work authorization, the parties did not include that information in the record they placed before the Court. The determination of Horma's lawful or unlawful presence turns on that date.
In Horma I, the Court found that Horma's immigration status became illegal the day after he overstayed his visa. However, the Court declined to determine on that factual record whether Horma was unlawfully present in the United States. 2018 WL 4214136 at *9-*10. The Court decided that if Horma was in illegal immigration status, but had not accrued any unlawful presence, 18 U.S.C. § 922(g)(5)(A) may have been ambiguous as applied to Horma. For that reason, the Court denied without prejudice the First Motion to Dismiss as to Counts One and Two.
As to the challenges to § 922(n) in Counts Three and Four, Horma's argument that the Maryland Tax Statute does not constitute "a crime punishable by imprisonment for a term exceeding one year," 18 U.S.C. § 922(n), as defined in 18 U.S.C. § 921(a)(20), failed. His vagueness challenge to § 922(n) also did not succeed. The Court denied those aspects of Horma's challenge with prejudice. But, given the parties' briefing and relevant precedent from the United States Court of Appeals for the Fourth Circuit, the Court declined to reach Horma's Second Amendment challenge. The Court denied without prejudice that aspect of Horma's First Motion to Dismiss Counts Three and Four under the Second Amendment.
On September 13, 2018, the Court held a status hearing, during which the United States orally moved to dismiss Counts One and Two of the Superseding Indictment. The Court granted the motion later that same day. (ECF No. 49.) The Court also set a briefing schedule for the Second Motion to Dismiss. On October 11, 2018, in accordance with the briefing schedule, Horma filed the Second Motion to Dismiss.
After an October 18, 2018 Status Conference, the Court scheduled the November 2018 Evidentiary Hearing and granted the United States' oral motion for an extension of time to file its response to the Second Motion to Dismiss. (ECF No. 55.) On October 31, 2018, the United States again asked for additional time to file its response to the Second Motion to Dismiss, (ECF No. 56), and the Court granted the request, (ECF No. 57). On November 5, 2018, the government filed its response to the Second Motion to Dismiss, and on November 9, 2018, Horma replied.
After the November 2018 Evidentiary Hearing, agreed-upon briefing ensued. On December 14, 2018, Horma filed his Supplemental Post-Hearing Memorandum. On December 28, 2018, the United States filed its Supplemental Post-Hearing Memorandum. The matter is now fully ripe.
Counts Three and Four of the Superseding Indictment charge Horma with receiving a gun while under indictment, in violation of 18 U.S.C. § 922(n). In his Second Motion to Dismiss, Horma asserts that the Court must find 18 U.S.C. § 922(n) unconstitutional, both as applied to him and on its face, because it violates his Second Amendment right to keep a firearm for self-defense. (2d Mot. Dismiss 5.)
Relevant here, the Fourth Circuit in Carpio-Leon held "that the Second Amendment right to bear arms does not extend to illegal aliens." United States v. Carpio-Leon, 701 F.3d 974, 982 (4th Cir. 2012) (emphasis in original). Because, as explained below, the record now fully establishes that Horma presents as an illegal alien, the Court must deny the Second Motion to Dismiss. Carpio-Leon, 701 F.3d 974.
Title 18 Section 922(n) of the United States Code (the "Non-Receipt Statute") provides that "[i]t shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to . . . receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 922(n).
The Second Amendment provides that "[a] well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." U.S. CONST. amend. II. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment granted individuals the right to keep and bear arms.
The Supreme Court in Heller "declin[ed] to establish a level of scrutiny for evaluating Second Amendment restrictions" id. at 634, concluding instead that the firearm regulation at issue in that case failed "[u]nder any of the standards of scrutiny [the Supreme Court has] applied to enumerated constitutional rights," id. at 628. "Because `Heller left open the level of scrutiny applicable to review a law that burdens conduct protected under the Second Amendment, other than to indicate that rational-basis review would not apply,'" the Fourth Circuit was left to "select between strict scrutiny and intermediate scrutiny" when assessing a challenge to a law that burdened Second Amendment conduct. Kolbe, 849 F.3d at 133 (quoting United States v. Chester, 628 F.3d 673, 682 (4th Cir. 2010)). The Fourth Circuit consequently established "a two-part approach to Second Amendment claims." Chester, 628 F.3d at 680.
A court within the Fourth Circuit evaluating a Second Amendment challenge first asks "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee." Id. "This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification." Id. "If it was not, then the challenged law is valid" and the inquiry ends. Id. (citing United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010)); see also Carpio-Leon, 701 F.3d at 982.
A court must only proceed to the second step of a Chester analysis "[i]f the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood." Chester, 628 F.3d at 680. In that circumstance, a court would apply "an appropriate form of means-end scrutiny." Id. But if a court finds that "the conduct at issue was [not] understood to be within the scope of the right at the time of ratification," then it need not determine whether the challenged law survives either form of scrutiny, because the "challenged law is valid." Id.
As identified earlier, the Fourth Circuit has concluded in Carpio-Leon "that illegal aliens do not belong to the class of law-abiding members of the political community to whom the protection of the Second Amendment is given." Carpio-Leon, 701 F.3d at 981. The Carpio-Leon court reached this conclusion after conducting a historical inquiry.
In Horma I, this Court discussed the difference between illegal immigration status and the accrual of unlawful presence at length. This Court concluded that Horma's immigration status became illegal the day after he overstayed his valid B-1/B-2 visa on June 29, 2014. See Horma I, 2018 WL 4214136 at *7-*9. However, this Court could not determine in Horma I whether Horma had accrued unlawful presence, pursuant to 8 U.S.C. § 1182(a)(9)(B)(ii).
But, on the earlier record, the Court could not determine whether Horma had worked without authorization. Because the record here demonstrates that Horma worked without authorization, the Court now finds that he is also unlawfully present in the United States. For the reasons stated below, the Court must find that Horma presents as an illegal alien within the Fourth Circuit's holding in Carpio-Leon. The Court's inquiry thus ends at the first step of the Chester process.
On December 29, 2013, Horma lawfully entered the United States on a valid six-month B-1/B-2 visa. Horma filed his Asylum Application more than four months before his visa expired. Because his Asylum Application pended before USCIS, pursuant to 8 U.S.C. § 1182(a)(9)(B)(iii)(II), Horma was not necessarily unlawfully present at the time his visa expired. Under 8 U.S.C. § 1182(a)(9)(B)(iii)(II), whether Horma was unlawfully present turns on whether he worked without authorization.
On March 20, 2015, Horma received his work authorization from USCIS. The work authorization allowed Horma to work with authorization for one year, until March 19, 2016, without accruing any unlawful presence. But during the November 2018 Evidentiary Hearing, the United States introduced ample evidence that Horma worked as a cigarette wholesaler without authorization. Because Horma's unauthorized work deprives him of the benefit of the applicable tolling provisions in 8 U.S.C. § 1182(a)(9)(B)(iii)(II), Horma is unlawfully present in the United States.
First, the Government submitted Ms. Young's testimony, which established that during the periods both before Horma received work authorization and after his work authorization expired, Horma deposited hundreds of thousands of dollars into various bank accounts in his name. Second, the Government presented the testimony of Lt. Bodenhamer, who testified that Horma associated himself with at least six business, even listing himself as the company contact when applying to open a Sam's Club membership for one of those businesses on February 2, 2017. Lt. Bodenhamer also presented three charts showing Horma's cigarette purchases using the businesses' membership cards with dates ranging from October 2015, while he held a valid work authorization, to March 2017, well after his work authorization expired.
The United States also presented the testimony of William Chin, Jr., a deportation officer with Immigration and Customs Enforcement. Agent Chin testified that "[i]f somebody comes here on a tourist visa, a non-immigrant visa, they're not authorized to work in any way, shape, or form unless they're authorized by the government in advance." (Tr. 72.) He stated that if a person admitted on a non-immigrant visa works without authorization, then "[t]hey would be out of their status." (Id.) Although Agent Chin testified that Horma's work authorization was valid from March 20, 2015 until March 19, 2016, he also testified that Horma did not receive a renewal of his work authorization.
In Horma I, the Court found Horma to be in illegal immigration status. 2018 WL 4214136 at *7-*8. Based on the extant expanded record, the Court must also find that Horma has accrued unlawful presence because he worked without authorization. See 8 U.S.C. § 1182(a)(9)(B)(iii)(II); Horma I, 2018 WL *8-*9. Given both his illegal status and unlawful presence, the Court concludes that no ambiguity exists as to whether Horma presents as an illegal alien, and not a citizen, for purposes of his Second Amendment constitutional challenge.
Horma claims that the Court must find 18 U.S.C. § 922(n) unconstitutional both as applied to him and on its face. But Horma's status as an illegal alien materially affects his constitutional challenge to 18 U.S.C. § 922(n). Because the Court finds that the Second Amendment's protections do not extend to Horma as an illegal alien, the Court need not address Horma's facial challenge,
The Supreme Court in Heller found that individuals possess a right to keep and bear arms. See Heller, 554 U.S. at 592. But Heller does not grant an unlimited right to all persons to possess firearms for all purposes. See Carpio-Leon, 701 F.3d at 977 ("[T]he Second Amendment does not guarantee the right to possess for every purpose, to possess every type of weapon, to possess at every place, or to possess by every person" (citing Chester, 628 F.3d at 676)). Building on Heller, the Fourth Circuit, in Chester, established a two-step inquiry, in which a court first asks "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee" as historically understood. Chester, 628 F.3d at 680. If the conduct does not fall within that protected scope, then the "challenged law is valid," and the inquiry ends. Id. In such a case, a court need not proceed to the second step of the inquiry, "applying an appropriate form of means-end scrutiny." Id. Here, Horma's challenge fails at Chester's first step.
Carpio-Leon controls the Court's decision because § 922(n) does not "impose[] a burden on conduct falling within the scope of the Second Amendment's guarantee." Id. After conducting a historical inquiry, the Carpio-Leon court concluded that the protections of the Second Amendment do not extend to illegal aliens. Id. at 981. Similar to Carpio-Leon, Horma stands before the Court as an illegal alien to whom the protections of the Second Amendment do not extend.
For the reasons stated above, the Court will deny the Second Motion to Dismiss.
An appropriate Order shall issue.
8 U.S.C. § 1158(d)(2).
In his Second Motion to Dismiss, Horma states that "[a] screening questionnaire from the Maryland case, dated July 13, 2016, indicates that Mr. Horma's current employer was `Uber' and that he had been so employed for 6 months." (2d Mot. Dismiss 4.) The Government submitted the questionnaire into evidence at the November 2018 Evidentiary Hearing. The questionnaire lists Horma's employer as "Uber" and his last occupation as "Driver." (District Court of Md. For Howard County Initial Appearance Questionnaire 1.) It also indicates that Horma's last employer was "Itialian [sic] Kitchen Restaura[nt]." (Id.)
In its Response to the Second Motion to Dismiss, the United States asserted that although Horma "advised the Maryland court that he was an Uber driver for a six month period of time leading up to his arrest . . . [i]nformation received from Uber confirms that this is false information." (Resp. 3 n.2.) Additionally, the United States claims that Horma never worked at "The Italian Kitchen," a restaurant in Washington, D.C. (Id.) The United States submitted an October 15, 2018 letter from Uber indicating that Horma never worked for Uber, (Gov't Ex. 12), and "records from Washington, D.C. in response for wage information for the time period 2013 through 2017 . . . showing no record of any wages earned by" Horma, (Gov't Ex. 13).
It appearing that Horma worked as a cigarette subcontractor and owner in the cigarette wholesale business without work authorization from USCIS, the Court need not resolve whether Horma worked for Uber or The Italian Kitchen when resolving the Second Motion to Dismiss.
Md. Code, Tax-Gen. § 13-1015(a).
During the November 2018 Evidentiary Hearing, Horma presented the testimony of Lee Hush, an investigator with the Richmond Office of the Federal Public Defender for the Eastern District of Virginia. Investigator Hush confirmed that range safety officers were present at the shooting range when Investigator Hush visited Colonial Shooting Academy.
Horma I, 2018 WL 4214136 at *9.
Id. at *20 (emphasis added).
Id. at 627-28. This list of presumptively lawful prohibitions does not include a prohibition on receiving a firearm by a person indicted, but not yet convicted of, a felony, as provided in 18 U.S.C. § 922(n). See id. But that does not preclude this Court's holding. Heller supports this Court's decision today because Heller recognizes that the Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 635 (emphasis added). Horma is not a citizen; he presents as an illegal alien.
8 U.S.C. § 1182(a)(9)(B)(iii)(II). If an alien works without authorization during the pendency of her or his asylum application, then she or he will become unlawfully present in the United States.
Horma's argument misses the mark. Here, the Court must determine whether Horma is an illegal alien to whom the protections of the Second Amendment do not extend. Whether USCIS may later grant his Asylum Application does not affect this inquiry. Even were the Court amenable to distinguishing Horma's situation from Carpio-Leon's, Horma provides no legal basis for doing so.
Id. (quoting Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 485 (1989) and citing Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502-04 (1985)), aff'd, 638 F.3d 458 (2011). Furthermore, because "a party ordinarily `can only succeed in a facial challenge by "establish[ing] that no set of circumstances exists under which the [law] would be valid," i.e., that the law is unconstitutional in all of its applications,'" if a defendant fails to establish that a challenged law is unconstitutional as applied to him, that will often also, a priori, decide the facial challenge. Masciandaro I, 648 F. Supp. 2d at 792.
First, Horma misreads the Supreme Court's decision in Patel. The petitioners in Patel did not raise an as-applied challenge to the statute. Patel, 135 S.Ct. at 2447. The "questions presented [to the Supreme Court were] whether facial challenges to statues can be brought under the Fourth Amendment and, if so, whether [a] . . . provision of the Los Angeles Municipal Code is facially invalid." Id. The Supreme Court did not have an occasion to consider whether a court reviewing a statute must first determine whether the statute survives an as-applied challenge before addressing a facial challenge.
Second, while the Patel court found that "[t]he proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant," id. at 2451, this language does not support Horma's contention. Section 922(n), which prohibits those under indictment for a felony from possessing a firearm, applies to Horma. Therefore, Horma falls within the group "for whom the law is a restriction." Id. at 2451.
Even were the Court to consider Horma's facial challenge, it would likely fail. As the United States maintained at the November 2018 Evidentiary Hearing, § 922(n) has five important limitations: (1) "the person has to be indicted for a serious crime, which is a felony," (2) "a person has to know they have been indicted," (3) if a person has been indicted, then a grand jury has made a determination of probable cause, (4) the statute includes "a limited exception for certain indictments for . . . business . . . related crimes," and (5) the probation exists "only for the duration of the indictment." (Tr. 182-83.) Because, as Counsel for Horma conceded, the Government has an important interest in safety, and these five limitations limit the statute in time and scope, the Court would likely find that 18 U.S.C. § 922(n) does not amount to an unconstitutional blanket ban.
Although the Fourth Circuit in Carpio-Leon referred to the fact that "the crime of illegal entry inherently carries this additional aspect that leaves an illegal alien's status substantially unprotected by the Constitution in many respects," it did so because of the facts before it. See 701 F.3d at 975, 981. Nothing in that decision expressly limits the definition of illegal aliens to those who have entered the country illegally. The Court will not adopt such a narrow interpretation of Carpio-Leon. Horma falls within the definition of illegal alien as set forth by the Fourth Circuit in Carpio-Leon because his immigration status changed to illegal and he became unlawfully present.
To preserve his position for further review, Horma also argues that the Fourth Circuit erred when it held that the Second Amendment protections do not extend to illegal aliens. Horma believes that the United States Court of Appeals for the Seventh Circuit correctly held that an illegal alien "who had entered the United States voluntarily and resided here 20 years, since age four or five, was included within the scope of the Second Amendment." (Id. 7 (citing United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir. 2015)).) Of course, Seventh Circuit decisions do not bind this Court.
Moreover, Horma's situation differs materially from the defendant in Meza-Rodriguez. In Meza-Rodriguez, the Seventh Circuit found that the defendant "has extensive ties with this country, having resided here from the time he arrived over 20 years ago at the age of four or five until his removal. He attended public schools in Milwaukee, developed close relationships with family members and other acquaintances, and worked (though sporadically) at various locations." Meza-Rodriguez, 798 F.3d at 670-71. Horma cannot claim such connections. Horma entered the United States at the age of nineteen, just over six years ago. Nothing in the record suggests that Horma attended school in the United States or developed the type of ties that the Seventh Circuit found persuasive in Meza-Rodriguez. See Meza-Rodriguez, 798 F.3d at 670-72 (finding that Meza-Rodriguez had "substantial connections with this country."). Instead, Horma overstayed his visa and worked without authorization.
