                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4920


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DANIEL GUERRERO-LECO,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:08-cr-00118-RJC-1)


Submitted:   June 10, 2011           Decided:   September 13, 2011


Before SHEDD, DAVIS, and KEENAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.       Judge
Davis wrote a concurring opinion.


Claire J. Rauscher, Ann L. Hester, Ross H. Richardson, Peter
Adolf, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina; Matthew R. Segal, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, Charlotte,
North Carolina; Amy E. Ray, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Daniel Guerrero-Leco, an alien illegally in the United

States, pled guilty to possessing a firearm in violation of 18

U.S.C. § 922(g)(5), and the district court sentenced him to a

24-month    term     of   imprisonment.          Before        pleading   guilty,

Guerrero-Leco      unsuccessfully   moved   to    dismiss       the   indictment,

arguing that § 922(g)(5) violates the Second Amendment.                          His

guilty plea is conditioned on his right to appeal the denial of

his dismissal motion, and that is the matter now before us.

           Guerrero-Leco’s      argument    is   premised        on   District    of

Columbia v. Heller, 554 U.S. 570 (2008), in which the Court held

generally that the Second Amendment confers an individual right

to bear firearms for self-protection.               After this appeal was

filed, we held in United States v. Chester, 628 F.3d 673 (4th

Cir.    2010),     that   a   two-prong    analysis       is     appropriate     to

determine whether a statute or regulation violates a defendant’s

Second Amendment right to bear firearms.           As we explained:

       The first question is “whether the challenged law
       imposes a burden on conduct falling within the scope
       of the Second Amendment’s guarantee.” 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.      If it was not,
       then the challenged law is valid.    If the challenged
       regulation burdens conduct that was within the scope
       of the Second Amendment as historically understood,
       then we move to the second step of applying an
       appropriate form of means-end scrutiny.



                                      2
Id. at 680 (citations omitted).                   Because the district court in

Chester     had       not   undertaken       that    analysis,        we    vacated       the

judgment and remanded for further proceedings.                        See also United

States v. Pruess, 416 Fed. Appx. 274, 275 (4th Cir. 2011) (“[A]s

we   have      determined       that    a    district    court     must         conduct    an

analysis       of    a   challenged     regulation      in    light    of       Heller,     we

remand    to    the      district    court    with   instructions          to    make     this

determination in accordance with our decision in Chester.”).

               At our request, the parties have filed supplemental

briefs addressing Chester.                  In his brief, Guerrero-Leco argues

that this case is similar to Chester and Pruess, and that we

should vacate the judgment and remand this case to the district

court with instructions to undertake the Chester analysis in the

first instance.          We agree.

               Accordingly,      we    vacate     the   judgment      and       remand     for

further proceedings consistent with this opinion.                            We dispense

with oral argument because the facts and legal contentions are

adequately          presented   in     the   materials       before    the       court     and

argument would not aid the decisional process.



                                                               VACATED AND REMANDED




                                              3
DAVIS, Circuit Judge, concurring:

              I concur in the panel’s per curiam opinion vacating

the judgment and remanding this case to the district court.

              Appellant,     an   undocumented         citizen    of   Mexico,      was

convicted for illegally possessing an UZI pistol. Appellant’s

twenty-four        month   custodial     sentence,      for    which   he     received

credit back to the date of the offense, May 3, 2008, plainly

expired well over one year ago. Moreover, a search of the on-

line    detainee      locator     website       of    Immigration      and    Customs

Enforcement (ICE), see https://locator.ice.gov/odls/homePage.do,

shows no information for the Appellant, who appears not to be in

ICE    custody.      Presumably,    therefore,         the    Appellant      has   been

removed from this country and likely will not be available for

the further proceedings contemplated by our remand of this case.

              I confess that I am not certain which would be the

less   desirable      outcome:     (1)   that    the    Government     declined      to

deport the Appellant (because this appeal was pending) and he is

therefore still in this country, or (2) that the Appellant’s

conviction will be permanently vacated because the Government

has    made   it    impossible     for   him     to    be    present   for     further

proceedings by deporting him sometime in the last year to Mexico

upon his release from the Bureau of Prisons. One should not be

surprised if Heller, which was decided about two months after



                                          4
Appellant’s   arrest   in   this   case,   has   spawned   this   kind   of

conundrum in many districts.




                                    5
