                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-1142
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                Kyle Joseph Turner

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                 for the Northern District of Iowa - Cedar Rapids
                                  ____________

                          Submitted: November 14, 2016
                            Filed: November 22, 2016
                                  ____________

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
                          ____________

MURPHY, Circuit Judge.

      Kyle Joseph Turner pled guilty to one count of possession of a firearm and
ammunition by an unlawful drug user in violation of 18 U.S.C. §§ 922(g)(3) and
924(a)(2), conditioned on his right to appeal the denial of his pretrial motion to
dismiss. He argues on appeal that 18 U.S.C. § 922(g)(3) is unconstitutionally vague
and that the district court made various sentencing errors. We remand for further
proceedings.
                                           I.

      On June 11, 2015 state corrections officer Steve Warner visited the home of
Kyle Turner who was serving a state probationary sentence. Turner told officer
Warner that he had a shotgun in his possession. Warner located the shotgun in
Turner's bedroom next to some ammunition. Later that day, Turner provided a urine
sample that tested positive for methamphetamine. He was thereafter indicted for
possession of a firearm by an unlawful drug user in violation of 18 U.S.C.
§ 922(g)(3), specifically for possessing a firearm while being an "unlawful user of
methamphetamine."

       Turner filed a motion to dismiss the indictment. He argued that § 922(g)(3)
was unconstitutionally vague as applied to his conduct because his indictment failed
to allege that he "engaged in regular use of methamphetamine." The government
responded that the motion to dismiss was premature because it turned on evidence
that would be presented at trial. The district court denied the motion, concluding that
the indictment alleged sufficient facts to defeat Turner's vagueness challenge. Turner
subsequently entered a conditional guilty plea, reserving his right to appeal the denial
of his motion to dismiss. Turner's plea agreement stated that on June 11, 2015 he
"was an unlawful user of methamphetamine." The agreement further stated that on
June 11, 2015 he had "tested positive for methamphetamine" and "admitted to using
methamphetamine approximately one week prior."

      After conditionally pleading guilty, Turner moved for reconsideration of the
motion to dismiss. Turner also requested an evidentiary hearing to introduce the
documentary "evidence upon which [he] was indicted" and "upon which the plea was
entered." The government's opposing motion included additional exhibits that
purportedly showed Turner's prior drug use. The district court once again denied the
motion to dismiss, this time finding that the government's evidence established that

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Turner had engaged in "regular drug use" at a time "overlapping his possession of a
firearm." Turner was subsequently sentenced to 15 months imprisonment, and
appeals, challenging both the denial of his motion to dismiss and his sentence.

                                            II.

       Turner argues that the district erred in denying his motion to dismiss which
raised the affirmative defense that 18 U.S.C. § 922(g)(3) was unconstitutionally
vague as applied to the facts of his case. We review the denial of a motion to dismiss
de novo. United States v. Huggans, 650 F.3d 1210, 1217 (8th Cir. 2011). A criminal
statute is unconstitutionally vague in violation of the Fifth Amendment due process
clause if it "fails to give ordinary people fair notice of the conduct it punishes, or [is]
so standardless that it invites arbitrary enforcement." Johnson v. United States, 135
S. Ct. 2551, 2556 (2015).

        Federal Rule of Criminal Procedure 12(b)(1) permits parties to "raise by
pretrial motion any defense, objection, or request that the court can determine without
a trial on the merits." A motion is capable of pretrial determination "if trial of the
facts surrounding the commission of the alleged offense would be of no assistance in
determining the validity" of the motion. United States v. Covington, 395 U.S. 57, 60
(1969). The district court must rule on such a motion before trial unless there is
"good cause to defer a ruling" and deferral will not "adversely affect a party's right
to appeal." Fed. R. Crim. P. 12(d).

       We conclude that "a trial on the merits" was needed to decide Turner's pretrial
motion to dismiss. As a preliminary matter, the parties dispute what evidence the
district court could consider in making its ruling. Courts may consider evidence
beyond the pleadings to make factual findings in pretrial orders. See United States v.
Bloomfield, 40 F.3d 910, 913–15 (8th Cir. 1994) (en banc); see also Fed. R. Crim. P.
12(a) (defining "pleadings"). Indeed, Rule 12 contemplates that district courts may

                                           -3-
sometimes make factual findings when ruling on pretrial motions and requires that
the court "state its essential findings on the record." Fed. R. Crim. P. 12(d). Courts
may not, however, make factual findings when an issue is "inevitably bound up with
evidence about the alleged offense itself." United States v. Grimmett, 150 F.3d 958,
962 (8th Cir. 1998) (quoting United States v. Wilson, 26 F.3d 142, 159 (D.C. Cir.
1994)). The relevant question is thus not what evidence the court relied upon in its
ruling, but rather what type of factual finding it made.

       The phrase "unlawful user of . . . any controlled substance" in 18 U.S.C.
§ 922(g)(3) is not defined by statute and "runs the risk of being unconstitutionally
vague without a judicially-created temporal nexus between the gun possession and
regular drug use." United States v. Turnball, 349 F.3d 558, 561 (8th Cir. 2003)
(emphasis added), vacated, 543 U.S. 1099 (2005), reinstated, 414 F.3d 942 (8th Cir.)
(per curiam). In order to rule on Turner's as applied constitutional challenge, the
district court therefore had to determine whether he had engaged in "regular drug use"
at the time he possessed the firearm. The "facts surrounding the commission of the
alleged offense" would assist with that determination, and the contested defense
therefore could not be ruled upon without a "trial on the merits." See Covington, 395
U.S. at 60; Fed. R. Crim. P. 12(b)(1).

       We conclude that the district court erred by definitively ruling on the motion
at that point instead of informing Turner that it would defer a ruling until trial.
Pretrial motions should be ruled on unless there is "good cause to defer a ruling."
Fed. R. Crim. P. 12(d). Good cause exists and a decision should be deferred if
disposing of the pretrial motion requires making factual determinations that "fall[]
within the province of the ultimate finder of fact." United States v. Wilson, 26 F.3d
142, 159 (D.C. Cir. 1994) (quoting United States v. Shortt Accountancy Corp., 785
F.2d 1448, 1452 (9th Cir. 1986)).




                                         -4-
        Here, the district court could not rule on Turner's as applied constitutional
challenge without resolving factual issues related to his alleged offense, such as the
extent of his drug use, and therefore the court should have deferred ruling until trial.
The court's premature ruling prejudiced Turner's ability to obtain appellate review of
his constitutional challenge, for he conditionally pled guilty under his mistaken
assumption that he could "have an appellate court review an adverse determination"
of his motion to dismiss. See Fed. R. Crim. P. 11(a)(2). He could not have obtained
such an adverse determination without proceeding to trial, however, and thus could
not both plead guilty and obtain appellate review of his constitutional challenge. Had
the district court informed Turner that it would have to defer a final ruling on his
motion, Turner could have "move[d] to vacate [his] guilty plea[]" and "proceed[ed]
to trial on the original charges." See Grimmett, 150 F.3d at 962. We remand for
Turner to have the opportunity to consider this choice.1

                                          III.

      For the foregoing reasons, the district court order denying Turner's motion to
dismiss is reversed, the judgment is vacated, and the case is remanded for further
proceedings consistent with this opinion.2



      1
        Although a facial challenge to 18 U.S.C. § 922(g)(3) could be brought in a
pretrial motion to dismiss, see United States v. Pope, 613 F.3d 1255, 1261 (10th Cir.
2010), a panel of our court has held that criminal statutes challenged on non First
Amendment grounds are not amenable to facial attacks. See, e.g., United States v.
Ghane, 673 F.3d 771, 777 (8th Cir. 2012); but see Johnson v. United States, 135 S.
Ct. at 2261 (stating that the Supreme Court "holdings squarely contradict the theory
that a vague provision is constitutional merely because there is some conduct that
clearly falls within the provision's grasp").
      2
       Because of this disposition, it is not necessary to reach Turner's alternative
sentencing arguments.

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