Boatwright v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DAMIEN BOATWRIGHT,

Movant,

Case No. 8:23-cv-2910-MSS-TGW

v.

Crim. Case No. 8:22-cr-175-MSS-TGW

UNITED STATES OF AMERICA,

Respondent.

_____________________________________/

O R D E R

Boatwright moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.

(Doc. 1) The Court preliminarily reviews the motion and supporting memorandum (Doc. 2)

for sufficiency. Rule 4(b), Rules Governing Section 2255 Proceedings.

Boatwright pleaded guilty to possession of a firearm and ammunition by a convicted

felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Crim. Doc. 85) The Court

sentenced Boatwright to seventy-seven months in prison followed by two years of supervised

release. (Crim. Doc. 85 at 2–3) In his Section 2255 motion, Boatwright cites New York State

Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), and asserts that his conviction violates his

Second Amendment right to bear arms and the equal protection clause. (Doc. 1 at 4)

When pleading guilty, Boatwright admitted that the following facts are true (Crim.

Doc. 40 at 17–19):

On February 3, 2022, Hillsborough County detectives observed

Antwan Brown and Damien Boatwright as they entered the

white Ford Escape near an apartment complex in the area of

Fiftieth Avenue at Sligh Boulevard in Tampa, Florida. Detective

Michael Fernandes of the Hillsborough Sheriff’s Office was

familiar with both Brown and Boatwright and recognized them

from previous investigations. Detective Fernandes knew both

Brown and Boatwright to be convicted felons. Detective

Fernandes observed Brown conduct suspected hand-to-hand

narcotics transactions during surveillance.

Detective Fernandes observed Antwan Brown and Damien

Boatwright enter a white Ford Escape. The vehicle left and began

[to] travel along Fifty-Sixth Street North. During their travel,

Brown commenced a live video over his known Instagram

account, “oto.twan,” which depicted Brown in a vehicle. This

live video showed Brown brandish a firearm to the camera.

During the video, Damien Boatwright is seen in the front

passenger seat. Boatwright is then seen brandishing an extended

magazine Glock firearm. Detective Fernandes observed the

video live on Brown’s social media page.

Based upon Brown, a convicted felon, and Boatwright, a

convicted felon, brandishing firearms on the roadways of

Hillsborough County, deputies conducted a traffic stop on the

white Ford Escape. Brown was seated in the rear of the car. He

was searched and found to have a holster in his waistband.

Deputies located a Taurus nine-millimeter firearm, loaded with

eighteen rounds of ammunition, in the rear of the car next to

where Brown was seated in the vehicle. The Taurus and the

eighteen rounds of ammunition were inspected by Special Agent

Matthew Murray from [the Bureau of Alcohol, Tobacco, and

Firearms], who determined the firearm and ammunition to have

origins outside of Florida.

Deputy Cap removed Boatwright from the front passenger seat

and located a Glock 26 under the front passenger seat. The pistol

had an extended magazine and was loaded with twenty-five

rounds of ammunition. Special Agent Murray inspected the

Glock and the twenty-five rounds of nine-millimeter

ammunition, and all items had origins outside of Florida.

Antwan Brown is a convicted felon from a Hillsborough County

conviction on February 13, 2019, for charges of delinquent in

possession of a firearm, possession of more than twenty grams of

marijuana, and tampering with evidence.

Damien Boatwright is a convicted felon from a Hillsborough

County conviction on June 1, 2021, for charges for aggravated

assault with a deadly weapon and carrying a concealed firearm;

Saint Lucie County conviction on March 24, 2020, for robbery,

grand theft, and battery by a detainee; and a Charlotte County

conviction on January 30, 2020, for grand theft.

Boatwright pleaded guilty on August 17, 2022 (Crim. Doc. 46), and the Court

sentenced Boatwright on January 12, 2023. (Doc. 84) Bruen issued on June 23, 2022. Because

Boatwright could have raised the equal protection claim and the Second Amendment claim

based on Bruen before his guilty plea and on direct appeal, the claims are procedurally

defaulted. Seabrooks v. United States, 32 F.4th 1375, 1383–84 (11th Cir. 2022). Even if not

procedurally defaulted, the claims are meritless.

Second Amendment Claim

Boatwright asserts that Section 922(g)(1), which prohibits a felon from possessing a

firearm, violates the Second Amendment as applied to his conviction. (Doc. 1 at 4) He

contends that the prosecutor failed to comply with Bruen and demonstrate that a law

prohibiting a felon from possessing a firearm falls within the country’s history and tradition.

(Doc. 2 at 5–10)

The plaintiffs in Bruen sued New York state authorities, who manage the state’s

firearm licensing laws, in a federal civil rights action. Bruen, 597 U.S. at 15–16. The plaintiffs

asserted that the state authorities violated their Second and Fourteenth Amendment rights by

denying their applications to carry a firearm for self-defense. Bruen, 597 U.S. at 15–16. State

law required an applicant who wanted to carry a concealed firearm in public for self-defense

to “‘demonstrate a special need for self-protection distinguishable from that of the general

community.’” Bruen, 597 U.S. at 12 (citation omitted).

Bruen, 597 U.S. at 10, held that “the Second and Fourteenth Amendments protect an

individual’s right to carry a handgun for self-defense outside the home.” The opinion required

that “the government [ ] affirmatively prove that its firearms regulation is part of the historical

tradition that delimits the outer bounds of the right to keep and bear arms.” Bruen, 597 U.S.

at 19. The opinion determined that New York’s requirement violated the Second Amendment

because the historical record “does not demonstrate a tradition of broadly prohibiting the

public carry of commonly used firearms for self-defense,” and “historical tradition [does not]

limit[ ] public carry only to those law-abiding citizens who demonstrate a special need for self-

defense.” Bruen, 597 U.S. at 38. The opinion concluded: “New York’s proper-cause

requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with

ordinary self-defense needs from exercising their right to keep and bear arms.” Bruen, 597 U.S.

at 71 (bolding added).

In his concurrence in Bruen, 597 U.S. at 80–81 (Kavanaugh, J., concurring), joined by

Chief Justice Roberts, Justice Kavanaugh clarifies that the majority opinion in Bruen does not

hold that a law prohibiting a felon from possessing a firearm violates the Second Amendment:

[A]s [Dist. of Columbia v. Heller, 554 U.S. 570 (2008)], and

[McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010)], established

and the Court today again explains, the Second Amendment

“is neither a regulatory straightjacket nor a regulatory blank

check.” Properly interpreted, the Second Amendment allows a

“variety” of gun regulations. Heller, 554 U.S. at 636. As Justice

Scalia wrote in his opinion for the Court in Heller, and Justice

Alito reiterated in relevant part in the principal opinion in

McDonald:

“Like most rights, the right secured by the Second

Amendment is not unlimited. From Blackstone

through the 19th-century cases, commentators

and courts routinely explained that the right was

not a right to keep and carry any weapon

whatsoever in any manner whatsoever and for

whatever purpose . . . . [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.

After Heller but before Bruen, United States v. Rozier, 598 F.3d 768, 770–71 (11th Cir.

2010), held that Section 922(g)(1) does not violate the Second Amendment. After Bruen,

United States v. Dubois, No. 22-10829, 2024 WL 927030 (11th Cir. Mar. 5, 2024) (citations

omitted), clarified that Bruen did not abrogate Rozier:

To determine whether Bruen abrogates Rozier, we apply our

prior-panel-precedent rule: “‘a prior panel’s holding is binding

on all subsequent panels unless and until it is overruled or

undermined to the point of abrogation by the Supreme Court or

by this court sitting en banc.’” An intervening Supreme Court

decision abrogates our precedent only if the intervening decision

is both “clearly on point” and “clearly contrary to” our earlier

decision. If the Supreme Court “never discussed” our precedent

and did not “otherwise comment[ ] on” the precise issue before

the prior panel, our precedent remains binding. To abrogate a

prior-panel precedent, “the later Supreme Court decision must

‘demolish’ and ‘eviscerate’ each of its ‘fundamental props.’” So,

for example, if our precedent relied on “a line of Supreme Court

precedents that the [Supreme] Court itself emphasizes in a later

decision is not implicated by that later decision,” the Supreme

Court’s intervening decision “cannot have” abrogated our

precedent.

Bruen did not abrogate Rozier. Because the Supreme Court “made

it clear in Heller that [its] holding did not cast doubt” on felon-in-

possession prohibitions, and because the Court made it clear in

Bruen that its holding was “[i]n keeping with Heller,” Bruen could

not have clearly abrogated our precedent upholding section

922(g)(1). Indeed, the Bruen majority did not mention felons or

section 922(g)(1).

Post-Bruen, other circuits agree that Section 922(g)(1) does not violate the Second

Amendment. United States v. Jackson, 69 F.4th 495, 505–06 (8th Cir. 2023) (“Consistent with

the Supreme Court’s assurances that recent decisions on the Second Amendment cast no

doubt on the constitutionality of laws prohibiting the possession of firearms by felons, we

conclude that the statute is constitutional as applied to Jackson.”); Vincent v. Garland, 80 F.4th

1197, 1201 (10th Cir. 2023) (“Though Bruen created a new test for determining the scope of

the Second Amendment, the Court didn’t appear to question the constitutionality of

longstanding prohibitions on possession of firearms by convicted felons.”).

Boatwright does not cite binding authority that supports his Second Amendment

claim. Range v. Att’y Gen. U.S., 69 F.4th 96, 106 (3d Cir. 2023), narrowly held that Section

922(g)(1) violated the Second Amendment when applied to a defendant who was convicted

of a non-violent felony. The defendant in Range had a prior felony conviction for making a

false statement to obtain food stamps. Range, 69 F.4th at 98. Boatwright has prior convictions

for violent felonies, including aggravated assault with a deadly weapon, robbery, and battery.

(Doc. 40 at 19) Consequently, Range does not support Boatwright’s claim. Because Section

922(g)(1) constitutionally prohibited Boatwright, a felon with prior convictions for violent

crimes, from possessing a firearm, his Second Amendment claim is meritless.

Equal Protection Claim

Boatwright asserts that Section 922(g)(1) violates the equal protection clause because

federal prosecutors disproportionately charge African Americans and other minority groups

with possession of a firearm by a convicted felon and other felony crimes. (Doc. 2 at 4–19)

He contends that the prosecutor in his case charged him under a program called Project Safe

Neighborhoods and cites statistics that show that federal prosecutors disproportionately

prosecute African Americans under the program. (Doc. 2 at 15–19)

Boatwright’s equal protection claim fails for the reasons explained in United States v.

Jordan, 635 F.3d 1181, 1188–89 (11th Cir. 2011) (footnotes omitted):

It is by now abundantly clear that under the Due Process Clause

of the Fifth Amendment, “the decision whether to prosecute may

not be based on an unjustifiable standard such as race, religion,

or other arbitrary classification.” Smith, 231 F.3d at 807

(quotations omitted). In establishing that they are being

selectively prosecuted in an unconstitutional manner, defendants

bear a “demanding” burden. Id. “In order to dispel the

presumption that a prosecutor has not violated equal protection,

a criminal defendant must present clear evidence to the

contrary.” Id. (quotations omitted). Consistent with ordinary

equal protection standards, we require a showing “that the

federal prosecutorial policy had a discriminatory effect and that

it was motivated by a discriminatory purpose.” Id. at 808

(quotations omitted). . . .

The discriminatory effect prong of this test requires that

“similarly situated individuals were not prosecuted.” Smith, 231

F.3d at 809. As we’ve explained:

[A] “similarly situated” person for selective

prosecution purposes [is] one who engaged in the

same type of conduct, which means that the

comparator committed the same basic crime in

substantially the same manner as the defendant —

so that any prosecution of that individual would

have the same deterrence value and would be

related in the same way to the Government’s

enforcement priorities and enforcement plan —

and against whom the evidence was as strong or

stronger than that against the defendant.

Id. at 810. We have considered a comparison of the criminal

histories of defendants to be relevant to the “similarly situated”

inquiry. See Quinn, 123 F.3d at 1426. Accordingly, “raw statistics

regarding overall charges say nothing about charges brought

against similarly situated defendants.” United States v. Bass, 536

U.S. 862, 864 (2002) (mem.) (per curiam) (emphasis omitted).

The discriminatory purpose prong requires that “the

decisionmaker selected or reaffirmed a particular course of

action at least in part ‘because of,’ not merely ‘in spite of,’ its

adverse effects upon an identifiable group.” Wayte v. United

States, 470 U.S. 598, 610 (1985) (quotations and alteration

omitted).

The district court correctly denied Jordan’s motion to dismiss for

selective prosecution because, at the very least, he failed to

establish discriminatory effect. As the record shows, Jordan was

convicted of possession of a firearm and subject to the Armed

Career Criminal Act sentencing enhancement under 18 U.S.C.

§ 924(e)(1), because he had been convicted of at least three prior

qualifying convictions for purposes of the ACCA. In order to

establish discriminatory effect, Jordan would have to present

clear evidence that a similarly situated defendant of another race

was treated differently than he. The data that Jordan submitted

in his motion to dismiss showed only that African Americans

account for approximately ninety-three percent of ACCA

prosecutions in the Northern District of Georgia, while they

account for significantly less than ninety-three percent of the

general population or of the population of convicted felons who

carry firearms. Jordan’s data did not, however, include the

criminal histories of the other defendants. As a result, his figures

are not probative of the “similarly situated” inquiry of the

discriminatory effect test. See Bass, 536 U.S. at 864; Quinn, 123

F.3d at 1426. Indeed, Jordan did not show that a single arrestee

who was not prosecuted under the ACCA qualified for such

prosecution, much less possessed a criminal history as

substantial as his own. Therefore, he “has not presented ‘some’

evidence tending to establish selective prosecution,” much less

facts sufficient to create a reasonable doubt about the

constitutionality of his prosecution. . . .

Boatwright fails to allege facts that demonstrate a discriminatory effect. He contends

that prosecutors investigate and prosecute firearm crimes under Project Safe Neighborhoods

only in urban areas with large populations of African Americans. (Doc. 2 at 15–17) He states

that in the Eastern District of Michigan, ninety percent of the defendants prosecuted under

Project Safe Neighborhoods are African American, in the Southern District of New York,

eighty percent of the defendants prosecuted under the project are African American, and in

Cincinnati, Ohio, ninety percent of the defendants prosecuted under the project are African

American. (Doc. 2 at 18) Because Boatwright cites statistics concerning the percentage of

African Americans prosecuted for firearm offenses in a particular geographic area and fails to

identify similarly situated convicted felons of another race who possessed firearms but evaded

prosecution, his equal protection claim fails. Jordan, 635 F.3d at 1188–89.

Accordingly, Boatwright’s Section 2255 motion to vacate (Doc. 1) is DENIED. The

Clerk is DIRECTED to enter a judgment against Boatwright, DOCKET a copy of this Order

in the criminal action, and CLOSE this case.

DENIAL OF A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Because Boatwright neither makes a substantial showing of the denial of a

constitutional right nor shows that reasonable jurists would find debatable both the merits of

the underlying claims and the procedural issues, a certificate of appealability and leave to

appeal in forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2). Slack v. McDaniel, 529 U.S.

473, 478 (2000).

DONE AND ORDERED in Tampa, Florida on March 8, 2024.

/ I i NV

MARYS. SORIVEN

UNITED STATES DISTRICT JUDGE