11-5452-cr
United States v. Bryant

                             UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT
                                   _____________________

                                         August Term, 2012

        (Argued: December 11, 2012                                 Decided: April 3, 2013)

                                       Docket No. 11-5452-cr
                                      _____________________

                                    UNITED STATES OF AMERICA,

                                                       Appellee,

                                                -v.-

                                           RON BRYANT,

                                                   Defendant-Appellant.
                                    _______________________

        Before:
                          POOLER, HALL, LIVINGSTON, Circuit Judges.
                                    _______________________

        Defendant Ron Bryant appeals from a judgment of the United States District Court for

the Western District of New York convicting Bryant of one count of possession with intent to

distribute cocaine base and one count of unlawful possession of a firearm in furtherance of a

drug trafficking crime and sentencing Bryant to a total effective sentence of 81 months’

imprisonment. On appeal, Bryant argues that his conviction under 18 U.S.C. § 924(c) for

unlawful possession of a firearm in furtherance of drug trafficking is barred by the Second

Amendment because his conviction burdens his lawful right to possess a firearm for self-defense

in his home. We reject Bryant’s challenge, and we join our sister circuits in holding that 18

U.S.C. § 924(c) is constitutional as applied and that the Second Amendment does not safeguard


                                                 1
the unlawful purpose of possessing a firearm in furtherance of drug trafficking. For the reasons

stated herein and in an accompanying summary order addressing the remainder of Bryant’s

challenges, we AFFIRM the judgment of conviction.

                       AFFIRMED.
                                      _______________________

               MONICA J. RICHARDS, Assistant United States Attorney, for William J. Hochul,
               Jr., United States Attorney for the Western District of New York, Buffalo, New
               York, for Appellee.

               ANNE M. BURGER, Assistant Federal Public Defender, Rochester, New York, for
               Defendant-Appellant.
                                    _______________________

PER CURIAM:

       Defendant Ron Bryant (“Bryant”) appeals from a judgment of the United States District

Court for the Western District of New York (Siragusa, J.) convicting Bryant of one count of

possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C),

and one count of unlawful possession of a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1), and sentencing Bryant to a total effective sentence of 81

months’ imprisonment. We decide three of four issues in an accompanying summary order. We

write here to address Bryant’s argument that his conviction under 18 U.S.C. § 924(c) is barred by

the Second Amendment.

       Following the conclusion of trial but before sentencing and entry of final judgment,

Bryant filed a motion to vacate his 18 U.S.C. § 924(c)(1) conviction for unlawful possession of a

firearm. He argued that the Supreme Court’s decision in District of Columbia v. Heller, 554

U.S. 570 (2008), which had issued after the date of his conviction, required his § 924(c)

conviction be vacated. Specifically, he argued that under Heller’s clarification of the Second

Amendment, he had a right to possess the “legal shotgun” he had purchased and retained within

                                                 2
his home in order to protect himself. That motion was denied. Bryant argued below and now

argues to us that “it cannot constitutionally be assumed that all such people” charged with

violating 18 U.S.C. § 942(c)(1) “pose a risk of future violence.” On that basis he asserts that §

924(c) is unconstitutional as applied because his conviction burdened his constitutional right to

keep and bear arms in defense of his own home. We reject Bryant’s challenge, and we join our

sister circuits in holding that 18 U.S.C. § 924(c) is constitutional as applied and that the Second

Amendment does not safeguard the unlawful purpose of possessing a firearm in furtherance of

drug trafficking.

           For the reasons stated herein and in an accompanying summary order addressing the

remainder of Bryant’s challenges, we AFFIRM the judgment of conviction.

      I.      BACKGROUND

           In March 2007, officers from the Rochester Police Department executed a search warrant

for a residence at 102 Cottage Street, a home in Rochester, New York. The search recovered in

the master bedroom of the residence:

           [S]even small baggies containing a white rock-like substance in an unmarked pill bottle
           on top of the television, approximately $83 cash next to the pill bottle, a loaded 12 gauge
           Remington shotgun with one round in the chamber and four rounds in the magazine
           underneath the bed, $700 in a phonebook in a headboard drawer, two digital scales (one
           in the headboard of the bed and one underneath the bed in a shoe box which also
           contained pieces of Bryant’s mail), a bottle marked “Superior B Crystallized Powder”
           containing a powder or “cut” on the headboard, $1,000 in a lockbox underneath the bed,
           and a box of 12 gauge shotgun shells in the closet.

Appellee’s Br. at 4 (record citations omitted). The search also recovered new plastic bags of

assorted sizes in the basement and pieces of mail addressed to Bryant in the kitchen.

           After completion of the search, Bryant, who had been in the residence when the police

arrived, agreed to speak with a Rochester police officer. His statement was memorialized in

writing and signed by both him and the officer. The statement reads in part:

                                                    3
               I have lived at 102 Cottage Street for approximately three years. I have a
       roommate named VJ. His real name is Vernon Something. About a month ago VJ started
       selling cocaine out of my house. If VJ is not home and someone wants some cocaine I
       will sell that cocaine. Two months after I moved in I was robbed. That is why I have a
       shotgun.
               All the cocaine, scales, and baking soda that was found in my room is all that I
       have.

Joint Appendix (“J.A.”) 270. In the course of the prosecution, Bryant filed a motion to suppress

this statement. The district court denied that motion, and Bryant does not challenge that

disposition on appeal.

       Following seizure of the drugs and the shotgun, a forensic chemist at the Monroe County

Public Safety Laboratory tested the drugs and concluded that each of the seven bags contained

cocaine base and niacinamide, a component of vitamin B3, and weighed in aggregate a total of

0.948 grams. A firearms examiner with the same laboratory test-fired the shotgun with the

ammunition seized from the house and determined the shotgun to be operable. Bryant was

indicted on two counts: (1) possession with intent to distribute a mixture and substance

containing a detectable amount of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C),

and (2) possession of a firearm, namely, a Remington, Model 870 Express, 12 gauge shotgun, “in

furtherance of a drug trafficking crime,” in violation of 18 U.S.C. § 924(c)(1).

       The case proceeded to trial in March 2008. The evidence presented against Bryant

included a stipulation regarding the nature (cocaine base and niacinamide) and weight (0.948

grams) of the contents of the seven bags seized from Bryant’s room, and Bryant’s post-arrest

statement that he lived at 102 Cottage Street, that his roommate sold cocaine, and that, when his

roommate was “not home and someone want[ed] cocaine,” Bryant would sell it. J.A. 120, 270.




                                                 4
          During the government’s rebuttal and pursuant to a waiver provision in a proffer

agreement between Bryant and the government, Agent Christopher Robinson testified, inter alia,

that he had previously reviewed with Bryant his post-arrest statement, and that:

          [Bryant] admitted that the statement was truthful and he further admitted that he was
          selling, what we would call narcotics, from his residence and he was using the shotgun
          recovered by the police department pursuant to the search warrant for protection in his
          narcotics selling activities.1

J.A. 154. On March 10, 2008, after two days of deliberation, the jury found Bryant guilty on

both counts of the indictment.

          At the end of June 2008, the Supreme Court issued its decision in District of Columbia v.

Heller, 554 U.S. 570 (2008). Some three months later, before the district court imposed sentence

on Bryant, Bryant filed a motion to vacate his conviction for possession of a firearm in

furtherance of a drug trafficking crime, arguing that 18 U.S.C. § 924(c), as applied, violated his

Second Amendment right, which the Supreme Court had declared in Heller was an “inherent

right” to possess and use a firearm in defense of his own home. He argued that the “conclusion

to be drawn from” Heller was “that any restrictions on gun possession that ‘burden the right of

self-defense’ by imposing serious criminal sanctions for firearms possession in the home are

constitutionally suspect.” J.A. 314. Bryant explained that he had purchased the shotgun for

protection, following a robbery at his residence. Bryant’s post-arrest statement that “[t]wo

months after I moved in I was robbed” and “[t]hat is why I have a shotgun” reflects this position.

See J.A. 270. Bryant also noted that he possessed the firearm legally, that it bore a serial

number, and that there was no evidence that he “brandished or even discharged” the firearm in

public.




1
    We address the admissibility of this statement in the accompanying summary order.
                                                  5
           The government opposed the motion to vacate, arguing that possession of a firearm in

furtherance of a drug trafficking crime is not protected under the Second Amendment. The

government asserted that “[i]t would be an absurd leap, both as a reading of Heller and as a

matter of common sense, to conclude that the Second Amendment provides a right to possess

firearms for unlawful purposes” and that “there is no basis for thinking that the Second

Amendment right enshrines a right to possess firearms [for] unlawful activities.”

           At a hearing held to address Bryant’s motion to vacate and to impose sentence, the

district court denied the motion, concluding: “The Court believes that the statute is constitutional

and that legislatively there is a right to impose criminal sanctions for the unlawful possession of

a weapon, such as occurred in this case. . . .” The court then sentenced Bryant to 21 months’

imprisonment on count one (the drug conviction) followed by a consecutive sentence of 60

months’ imprisonment on count two (the firearms conviction).

           The district court entered final judgment against Bryant on January 20, 2009. Bryant has

timely appealed.

     II.      DISCUSSION

           Bryant asserts, and the government does not contest, that he lived at 102 Cottage Street

for approximately three years, that he purchased the Remington shotgun a few months after he

moved in because he had been the victim of a robbery, and that he started selling cocaine from

his residence one month prior to the search of the premises and his arrest. It is undisputed that

Bryant legally purchased the shotgun and that the shotgun was not defaced or sawed-off. As

Bryant contends, there is no evidence that he ever carried, brandished, or discharged the weapon

in public.




                                                    6
         At trial, Bryant did not contest the sufficiency of the evidence to support the firearm

conviction. Nor did he contest the sufficiency of that evidence in his motion to vacate his

conviction. In fact, Bryant noted that “the Government’s proof related to Mr. Bryant possessing

the shotgun for protection during narcotics trafficking.” J.A. 315. Thus Bryant does not argue

on appeal that the evidence is insufficient to sustain his firearms conviction.2 Rather, Bryant’s

sole argument regarding his firearm conviction is that § 924(c) “cannot withstand constitutional

muster as applied” because it “bans the possession of any type of firearm, even for a legitimate

purpose such as self-defense, where the individual is accused of also possessing the firearm in

furtherance of a drug trafficking crime.” Appellant’s Br. at 50.

         We therefore turn to whether § 924(c) impermissibly burdens Bryant’s Second

Amendment right by prohibiting his possession of a firearm in furtherance of a drug trafficking

crime.

                A. CONSTITUTIONALITY OF § 924(c)

         We review de novo a challenge to the constitutionality of a statute. United States v.

Decastro, 682 F.3d 160, 163 (2d Cir. 2012). In rejecting Bryant’s as-applied challenge, we look

first to the Supreme Court’s seminal decision in District of Columbia v. Heller, 554 U.S. 570

(2008), then to subsequent decisions in our Circuit, and lastly to decisions in our sister circuits

that have directly resolved and likewise rejected similar challenges to the constitutionality of

§ 924(c).

         In Heller, the Supreme Court concluded, by parsing the language in the operative clause

of the Second Amendment, that the Amendment does “guarantee the individual right to possess


2
 Even if Bryant were to have advanced such a challenge, our examination of the evidence
presented at trial would lead us to conclude there was sufficient evidence to support the jury’s
verdict with respect to the firearms charge. See United States v. Snow, 462 F.3d 55, 62-63 (2d
Cir. 2006).
                                                   7
and carry weapons in case of confrontation,” a codification, the Court said, of a “pre-existing”

right. Heller, 554 U.S. at 592; see id. at 595 (“There seems to us no doubt, on the basis of both

text and history, that the Second Amendment conferred an individual right to keep and bear

arms.”). The Court explained that “the inherent right of self-defense has been central to the

Second Amendment” and that this right attaches with particular force “to the home, where the

need for defense of self, family, and property is most acute.” Id. at 628. The “core lawful

purpose” of the right to bear arms, therefore, is for “self-defense.” Id. at 630.

       The Court, however, explicitly limited this individual right by reference to other

individual Constitutional rights and by reference to the Second Amendment itself. “Like most

rights, the right secured by the Second Amendment is not unlimited.” Id. at 626; see id. at 595

(“Of course the right was not unlimited, just as the First Amendment’s right of free speech was

not.”). As the Supreme Court does not “read the First Amendment to protect the right of citizens

to speak for any purpose,” so it does not “read the Second Amendment to protect the right of

citizens to carry arms for any sort of confrontation.” Id. at 595. Specifically, the Court has made

clear that the right embodied in the Second Amendment is “not a right to keep and carry any

weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626. The Court

stated explicitly: “[N]othing in our opinion should be taken to cast doubt on longstanding

prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the

carrying of firearms in sensitive places such as schools and government buildings, or laws

imposing conditions and qualifications on the commercial sale of arms.” Id. at 626-27.

       The Court further explained that, “whatever else [the Second Amendment] leaves to

future evaluation, it surely elevates above all other interests the right of law-abiding, responsible

citizens to use arms in defense of hearth and home.” Id. at 635. We read this exegesis as an



                                                  8
implicit limitation on the exercise of the Second Amendment right to bear arms for “lawful

purpose[s],” id. at 628, 630, and a limitation on ownership to that of “law-abiding, responsible

citizens,” id. at 635. In its subsequent decision in McDonald v. City of Chicago, 130 S. Ct. 3020

(2010), the Court substantially confirmed such limitation when it wrote that the “central holding

in Heller” was “that the Second Amendment protects a personal right to keep and bear arms for

lawful purposes, most notably for self-defense within the home.” Id. at 3044 (emphasis added).

       Following the Supreme Court’s decision in Heller, our Circuit’s cases have also

embraced this implicit limitation. In United States v. Decastro, 682 F.3d 160 (2d Cir. 2012), we

held that “heightened scrutiny is triggered only by those restrictions that (like the complete

prohibition on handguns struck down in Heller) operate as a substantial burden on the ability of

law-abiding citizens to possess and use a firearm for self-defense (or for other lawful purposes).”

Id. at 166 (emphases added). In Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012),

we held that New York’s handgun licensing scheme did not violate the Second Amendment

when that scheme required “an applicant to demonstrate ‘proper cause’ to obtain a license to

carry a concealed handgun in public.” Id. at 83. There we rejected the Second Amendment

challenge, in part, because “[r]estricting handgun possession in public to those who have a

reason to possess the weapon for a lawful purpose is substantially related to New York’s

interests in public safety and crime prevention.” Id. at 98 (emphasis added); see also id. at 93

(explaining further that “some form of heightened scrutiny would be appropriate” because New

York’s licensing scheme “place[d] substantial limits on the ability of law-abiding citizens to

possess firearms for self-defense in public”).

       Other circuits have addressed arguments similar to those Bryant advances, and they have

rejected any contention that the Second Amendment entitles citizens to keep and bear arms “for



                                                 9
all self-protection,” given that the Supreme Court has said the purpose of the right is for “lawful

self-protection.” United States v. Jackson, 555 F.3d 635, 636 (7th Cir. 2009) (rejecting as-

applied challenge to constitutionality of § 924(c)). “Both implicitly and explicitly, the Court

made clear that its holding concerned the lawful possession and use of a firearm [and] . . . it

cannot seriously be contended that the Second Amendment guarantees a right to use a firearm in

furtherance of drug trafficking.” United States v. Potter, 630 F.3d 1260, 1261 (9th Cir. 2011)

(rejecting as-applied and facial challenges to constitutionality of § 924(c)). The “Constitution

does not give anyone the right to be armed while committing a felony, or even to have guns in

the next room for emergency use should suppliers, customers, or the police threaten a dealer’s

stash.” Jackson, 555 F.3d at 636. Congress has seen fit to make unlawful the possession of a

firearm in furtherance of a drug trafficking crime, and “there is no constitutional problem with

separating guns from drugs.” Id.

       In sum, given the Supreme Court’s guidance, our own jurisprudence, and the persuasive

authority from our sister circuits that have addressed this issue directly, we hold that the Second

Amendment does not protect the unlawful purpose of possessing a firearm in furtherance of a

drug trafficking crime and that 18 U.S.C. § 924(c) as applied in this case does not violate the

Second Amendment. Potter, 630 F.3d at 1261; Jackson, 555 F.3d at 636.

       Here, Bryant may have purchased and possessed the Remington shotgun for the “core

lawful purpose” of self-defense, Heller, 554 U.S. at 630, but his right to continue in that

possession is not absolute. The jury determined there was sufficient evidence to convict Bryant

of drug trafficking and also to convict him of possessing a firearm in connection with that drug

trafficking. Bryant does not challenge these convictions on the ground that there was insufficient

evidence to support them. Thus, once Bryant engaged in “an illegal home business,” Jackson,



                                                 10
555 F.3d at 636, he was no longer a law-abiding citizen using the firearm for a lawful purpose,

and his conviction for possession of a firearm under these circumstances does not burden his

Second Amendment right to bear arms.

    III.      CONCLUSION

           For the reasons stated herein as well as those in our accompanying summary order, we

AFFIRM the judgment of conviction.




                                                 11
