                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 10 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10076

                Plaintiff-Appellee,             D.C. No.
                                                2:17-cr-00265-JAT-1
 v.

ISRAEL TORRES,                                  MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                   James A. Teilborg, District Judge, Presiding

                    Argued and Submitted November 12, 2019
                            San Francisco, California

Before: BEA and LEE, Circuit Judges, and PIERSOL,** District Judge.

      Israel Torres (“Torres”) appeals the district court’s denial of his motion to

dismiss the indictment charging him with two counts of possessing firearms after

having been twice convicted of felonies in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). In 2004 and 2010, Torres pleaded guilty to aggravated driving-under-the-


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Lawrence L. Piersol, United States District Judge for
the District of South Dakota, sitting by designation.
influence offenses, each of which was designated as a felony offense under Arizona

law, and was punishable by a term of imprisonment exceeding one year. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

      On appeal, Torres argues that the district court erred in concluding that his as-

applied Second Amendment challenge to 18 U.S.C. § 922(g)(1) was foreclosed

under Ninth Circuit precedent.

      We review de novo the constitutionality of a statute, United States v. Jones,

231 F.3d 508, 513 (9th Cir. 2000), and constitutional challenges to a district court’s

denial of a motion to dismiss, United States v. Palmer, 3 F.3d 300, 305 (9th Cir.

1993).

      In District of Columbia v. Heller, the United States Supreme Court held that

while the Second Amendment conferred an individual right to keep and bear arms,

such right was not unlimited. 554 U.S. 570, 595, 626 (2008). Although the Court

declined to undertake an “exhaustive historical analysis” of the full scope of the

Second Amendment, it stated that “nothing in [its] opinion should be taken to cast

doubt on longstanding prohibitions on the possession of firearms by felons and the

mentally ill . . . .” Id. at 626. The Court referred to these regulatory measures as

“presumptively lawful.” Id. at 627 n.26.

      In United States v. Vongxay, we concluded that the Supreme Court’s language

in Heller regarding the presumptive lawfulness of long-standing restrictions on gun


                                           2
possession by felons served to limit the scope of the Court’s holding that the Second

Amendment conferred an individual right to keep and bear arms. 594 F.3d 1111,

1115 (9th Cir. 2010). We held that under Heller, “felons are categorically different

from individuals who have a fundamental right to bear arms” and rejected

Vongxay’s argument that § 922(g)(1) was unconstitutional as-applied to him

because it bars him and other citizens who have been convicted of non-violent

felonies from exercising all Second Amendment rights. Id. at 1115-16. Vongxay

had three previous non-violent felony convictions: two for car burglary and one for

drug possession. Id. at 1114.

      In United States v. Phillips, we again rejected a claim by a defendant that

§ 922(g)(1) violated his Second Amendment rights as-applied. 827 F.3d 1171, 1173

(9th Cir. 2016). There, Phillips argued that his felony conviction for misprision was

non-violent and passive and could not constitutionally serve as a basis for depriving

him of his right to possess a firearm. Id. We reiterated our holding in Vongxay that

“felons are categorically different from individuals who have a fundamental right to

bear arms” and concluded that we were “foreclosed” under Vongxay and Heller from

considering the defendant’s as-applied challenge. Id. at 1173-74.

      We stated in Phillips that while we were bound under Vongxay and Heller to

assume the propriety of felon firearm bans, there was “little question that Phillips’s

predicate conviction for misprision of felony [could] constitutionally serve as the


                                          3
basis for a felon ban” because the statute under which he was convicted was

functionally identical to its predecessor, enacted prior to the ratification of the

Second Amendment, and which made misprision a felony. Id. at 1175-76.              We

stated that we were “hard pressed to conclude that a crime that has always been a

federal felony [could] not serve as the basis of a felon firearm ban, simply because

its actus reus may appear innocuous.” Id. at 1176.

       Mr. Torres argues that the district court erred in concluding that Ninth Circuit

precedent foreclosed his as-applied challenge to the constitutionality of § 922(g)(1)

on the basis that his predicate felony convictions were not considered felonies at the

founding. We disagree. Like the court in Phillips and other courts in this Circuit

that have rejected as-applied challenges to the constitutionality of § 922(g)(1) under

the Second Amendment, this court is bound under Vongxay and Heller to assume

the propriety of felon firearm bans.1

      AFFIRMED.




1
  This court notes as well that even the plurality opinion in Binderup v. Attorney
General, 836 F.3d 336, 351 (3d Cir. 2016) (en banc), which Torres relies on heavily
in his argument for applying intermediate scrutiny in this case stated that “exclusions
need not mirror limits that were on the books in 1791 to comport with the Second
Amendment. Rather, we will presume the judgment of the legislature is correct and
treat any crime subject to § 922(g)(1) as disqualifying unless there is a strong reason
to do otherwise.”

                                          4
                                                                           FILED
United States v. Israel Torres, No. 18-10076                                JAN 10 2020
                                                                       MOLLY C. DWYER, CLERK
LEE, Circuit Judge, concurring:                                          U.S. COURT OF APPEALS



      I agree that Israel Torres’s felon-in-possession conviction under 18 U.S.C.

§ 922(g)(1) must be affirmed under this court’s precedent in United States v.

Vongxay, 594 F.3d 1111, 1116 (9th Cir. 2010) (stating that this circuit “declined to

make a distinction between violent and non-violent felons” for purposes of

analyzing Second Amendment challenges to § 922(g)(1)).

      I write separately, however, because I do not believe either the Supreme

Court or the Ninth Circuit has explicitly held that felons are categorically barred

from bringing as-applied Second Amendment challenges to § 922(g)(1). While

facial challenges to § 922(g)(1) are foreclosed, the door appears to remain ajar on

whether someone can pursue an as-applied Second Amendment challenge in

circumstances where the underlying felony is so minor or regulatory in nature and

has no analogue in the Founding era.

      The Supreme Court’s decision in District of Columbia v. Heller does not

appear to prohibit as-applied challenges. The opinion notes that “longstanding

prohibitions” like § 922(g)(1) are “presumptively lawful regulatory measures.”

554 U.S. 570, 626–27 n.26 (2008) (emphasis added). Presumptions require an

actor “[t]o take for granted as being true in the absence of proof to the contrary”

the matter presumed. American Heritage Dictionary (5th ed. 2016) (definition of
“presume”). In other words, presumptions may be rebuttable. While words in a

judicial opinion — as opposed to a statute — should not be scrutinized with a

gimlet eye, the Supreme Court’s use of the word “presumptively” in Heller at least

suggests that as-applied challenges based on the Second Amendment may be

permissible. And indeed, many of our sister circuits have cited that language to

consider as-applied Second Amendment challenges.1

      Further, neither Vongxay nor Phillips appear to expressly foreclose as-

applied challenges within the Ninth Circuit. The Vongxay court held that “felons

are categorically different from the individuals who have a fundamental right to

bear arms.” 594 F.3d at 1115 (emphasis added). The district court here cited that

sentence as an indication that the Ninth Circuit has categorically barred as-applied

challenges. But that sentence merely indicates that longstanding prohibitions like

§ 922(g)(1) are “presumptively” lawful because felons are “categorically




1
   See United States v. Torres-Rosario, 658 F.3d 110, 113 (1st Cir. 2011); Binderup
v. Attorney Gen. U.S., 836 F.3d 336, 343 (3d Cir. 2016) (en banc); United States v.
Moore, 666 F.3d 313, 316 (4th Cir. 2012); United States v. Williams, 616 F.3d 685,
692 (7th Cir. 2010); Schrader v. Holder, 704 F.3d 980, 988 (D.C. Cir. 2013); see
also United States v. Woolsey, 759 F.3d 905, 909 (8th Cir. 2014) (hearing as-
applied challenge to § 922(g)(1) but making no reference to Heller). But cf. United
States v. Chovan, 735 F.3d 1127, 1147 n.4 (9th Cir. 2013) (Bea, J., concurring)
(noting that federal courts are split on the meaning of “presumption” and stating
that “perhaps” the better reading is that the presumption is irrebuttable).
different.” That unremarkable observation does not say as-applied challenges are

categorically banned.

      Six years later, this court in Phillips suggested that it is far from settled

whether someone can mount an as-applied Second Amendment challenge where

the underlying felony is so minor and does not have a historical analogue in the

Founding era. The Phillips court held that it “does not address . . . the question of

whether there are limits on Congress’s and the States’ ability to define any old

crime as a felony and thereby use it as the basis for a § 922(g)(1) conviction,

consistent with the Second Amendment.” 827 F.3d 1171, 1176 n.5 (noting that

misprision was a felony prior to the enactment of the Second Amendment). The

court then wryly offered a seemingly fanciful hypothetical of whether a felony

conviction over “stealing a lollipop” could serve as a proper predicate for purposes

of § 922(g)(1). The court concluded that “remains to be seen.” Id.

      But we may not have to wait for Godot for an answer because that

hypothetical in Phillips may not be as fanciful as we may think. As many legal

commentators across the spectrum have noted, there has been a recent trend of so-

called “overcriminalization” under both federal and state laws. See, e.g., Stephen

F. Smith, Overcoming Overcriminalization, 102 J. Crim. L. & Criminology 537

(2013). For example, West Virginia law states that a person who shoplifts

merchandise of any amount on three separate occasions within seven years will
face a felony charge on her third offense. W. Va. Code Ann. § 61-3A-3 (West

2019). 2

      So can the government effectively extinguish the Second Amendment right

of a serial stealer of lollipops, even though such a right is fundamental and

“necessary to our system of ordered liberty”? McDonald v. City of Chicago, 561

U.S. 742, 778 (2010).

      Perhaps — but we can only be confident in the answer by subjecting that

question through the exacting scrutiny of judicial review. See Gonzales v. Carhart,

550 U.S. 124, 168 (2007) (noting that “[a]s-applied challenges are the basic

building blocks of constitutional adjudication”) (internal quotation marks and

citation omitted). The merit of such as-applied challenges may be minimal in

many, most, or even nearly all cases. But that should not mean that the

government can strip a citizen of her fundamental constitutional right that is

“deeply rooted in this Nation’s history and tradition” (McDonald, 561 U.S. at 768)

— without a meaningful opportunity to challenge the law as it applies to her.



2
  Other states appear to have similarly expansive felony laws. In Utah, for example,
illicitly recording in a movie theater on two occasions can earn the camera operator
a third-degree felony conviction. Utah Code Ann. § 13-10b-201 (West 2019). In
Florida, a man was reportedly charged with a felony for releasing a dozen heart-
shaped balloons in a misguided romantic gesture. See Erika Pesantes, Love Hurts:
Man Arrested for Releasing Helium Balloon with His Girlfriend, Sun Sentinel
(Feb. 22, 2013), https://www.sun-sentinel.com/news/fl-xpm-2013-02-22-fl-helium-
balloon-environmental-crime-20130222-story.html.
