Petition for Writ of Certiorari — Jose Angel Hernandez, Petitioner v. United States

No. ______________

In the

Supreme Court of the United States

___________

Jose Angel Hernandez,

Petitioner,

v.

United States of America,

Respondent.

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

Christopher Curtis

Assistant Federal Public Defender

Federal Public Defender’s Office

Northern District of Texas

819 Taylor Street, Room 9A10

Fort Worth, TX 76102

(817) 978-2753

Chris_Curtis@fd.org

QUESTIONS PRESENTED

I. Whether this Court should grant certiorari to determine whether 18 U.S.C.

§ 924(a) is unconstitutional by exceeding the scope of the commerce clause

and whether the statute requires knowledge of the interstate commerce

element?

ii

PARTIES TO THE PROCEEDING

Petitioner is Jose Angel Hernandez, who was the Defendant-Appellant in the

court below. Respondent, the United States of America, was the Plaintiff-Appellee in

the court below.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDING .............................................................................. ii

INDEX TO APPENDICES ........................................................................................... iv

TABLE OF AUTHORITIES .......................................................................................... v

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

STATUTORY AND CONSTITUTIONAL RULES AND

PROVISIONS................................................................................................................. 1

RELATED PROCEEDINGS.......................................................................................... 3

STATEMENT OF THE CASE....................................................................................... 4

REASONS FOR GRANTING THIS PETITION ........................................................... 6

I.

This Court should grant certiorari to determine whether 18 U.S.C.

§ 922(g) is unconstitutional by exceeding the scope of the commerce

clause and whether the statute requires knowledge of the interstate

commerce element? ............................................................................................. 6

CONCLUSION............................................................................................................. 12

iv

INDEX TO APPENDICES

Appendix A Judgment and Opinion of the Fifth Circuit, CA No. 19-10993, dated

July 14, 2020. United States v. Hernandez, 812 Fed. Appx. 253 (5th Cir.

2020) (unpublished).

Appendix B Judgment and Sentence of the United States District Court for the

Northern District of Texas, entered August 23, 2019.

v

TABLE OF AUTHORITIES

Cases

Page(s)

Bond v. United States, 564 U.S. 211 (2011) ................................................................ 7

Bryan v. United States, 524 U.S. 184 (1998) ............................................................ 10

District of Columbia v. Heller, 554 U.S. 570 (2008) ................................................. 11

Flores-Figueroa v. United States, 556 U.S. 646 (2009) ............................................. 10

Liparota v. United States, 471 U.S. 419 (1985) ........................................................ 11

McFadden v. United States, 135 S. Ct. 2298 2015 ................................................... 11

Morissette v. United States, 342 U.S. 246 (1952) ...................................................... 11

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ............................... 7, 8

Rehaif v. United States, ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019) 6, 9

Staples v. United States, 511 U.S. 600 ................................................................ 10, 11

United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013) ............................................ 6

United States v. Dancy, 861 F.2d 77 (5th Cir. 1988) .................................................. 6

United States v. Daugherty, 264 F.3d 513 (5th Cir. 2001) ......................................... 6

United States v. Freed, 401 U.S. 601 (1971) ............................................................. 11

United States v. Hernandez, 812 Fed. Appx. 253 (5th Cir. 2020) .................. 1, 3, 5, 6

United States v. Morrison, 529 U.S. 598, 618 (2000) ................................................. 7

United States v. Rawls, 85 F.3d 240 (5th Cir. 1996) .................................................. 6

United States v. Rose, 587 F.3d 695 (5th Cir. 2009) ................................................... 6

United States v. Wallace, 889 F.2d 580 (5th Cir. 1989) ............................................. 8

United States v. X Citement Video, 513 U.S. 64 (1994) ........................................... 11

Statutes

18 U.S.C. § 922 .................................................................................................... passim

18 U.S.C. § 924 ............................................................................................. 1, 9, 10, 11

21 U.S.C. § 802 ........................................................................................................... 11

21 U.S.C. § 841 ........................................................................................................... 11

28 U.S.C. § 1254 ........................................................................................................... 1

Miscellaneous

H.R. Rep. No. 99-495, 99 Cong., 2d Sess. 25-26, reprinted in 1986 U.S. Code Cong.

and Ad.News 1327, 1351-52 ................................................................................. 11

vi

United States Constitution

U.S. Constitution,Amend. V ........................................................................................ 2

U.S. Constitution, Art. I, Section 8, clause 3 .......................................................... 2, 7

vii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Jose Angel Hernandez seeks a writ of certiorari to review the

judgment of the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals is located within the Federal Appendix at

United States v. Hernandez, No. 19-10993, 812 Fed. Appx. 253 (5th Cir. July 14, 2020)

(unpublished). It is reprinted in Appendix A to this Petition. The district court’s

judgement and sentence is attached as Appendix B.

JURISDICTION

The panel opinion and judgment of the Fifth Circuit on remand were entered

on July 14, 2020. On March 19, 2020, the Court extended the 90-day deadline to file

a petition for certiorari to 150 days. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

STATUTORY AND RULES PROVISIONS

18 U.S.C. § 922(g) provides in relevant part:

It shall be unlawful for any person – (1) who has been convicted in any

court of, a crime punishable for a term of imprisonment exceeding one

year... to ship or transport in interstate or foreign commerce, or

possess in or effecting commerce, any firearm or ammunition....

18 U.S.C. § 924(a) provides in relevant part:

(2) Whoever knowingly violates subsection...(g)... of section 922 shall be

fined as provided in this title, imprisoned not more than 10 years, or

both.

1

CONSTITUTIONAL PROVISIONS

The Fifth Amendment to the United States Constitution provides

in part:

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury . . . nor be deprived of

life, liberty, or property, without due process of law . . .

Article I, Section 8, clause 3 of the United States Constitution provides in part

the authority of Congress “to regulate Commerce with foreign Nations, and among

the several States, and with Indian Tribes.”

2

LIST OF RELATED PROCEEDINGS

1. United States v. Jose Angel Hernandez, 5:19-CR-00039-H-BQ-1. United States

District Court, Northern District of Texas. Judgment entered August 23, 2019.

2. United States v. Jose Angel Hernandez, Fifth Circuit No. 19-10993, opinion dated

July 14, 2020. United States v. Hernandez, 812 Fed. Appx. 253 (5th Cir. 2020)

(unpublished).

3

STATEMENT OF THE CASE

On March 20, 2019, Jose Angel Hernandez (Hernandez) was charged in a twocount indictment in the Northern District of Texas, Lubbock division. (ROA.8). 1

Count One charged the offense of felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1), and Count Two charged the offense of possession of a firearm with

an obliterated serial number. (ROA.8-9). On March 29, 2019, Hernandez filed a

motion to dismiss the indictment alleging the constitutional arguments raised below

in this brief. (ROA.38-45). The motion to dismiss was denied by the district court.

(ROA.48).

On April 15, 2019, Hernandez entered a guilty plea to the Count One of the

indictment pursuant to a written plea agreement (ROA.62). Hernandez, in a written

factual resume, stipulated to facts that purported to establish the elements of the

offense. However, there was no stipulation that he had knowledge that the firearm

traveled in interstate commerce prior to his possession of the firearm, or that his

possession otherwise affected interstate commerce beyond the fact that the firearm

was manufactured in Maine. Moreover, the factual resume did not contain a

stipulation that Hernandez knew he was a convicted felon. See (ROA.58-60).

However, on August 19, 2019, Hernandez signed, and the parties filed a First

Amended Factual Resume, which listed as an element that the defendant knew he

had been convicted of a felony and contained a stipulation that Hernandez did have

1 For the convenience of the Court and the parties, Petitioner is citing to the page number of the record

on appeal below.

4

that knowledge. See (ROA.76-79). However, again there was no stipulation to his

knowledge of the interstate commerce element. Moreover, the only facts showing any

effect on interstate commerce was a sentence stating that the firearm in question was

manufactured in Maine. See id. The district court sentenced Mr. Hernandez to 96

months imprisonment, a three-year term of supervised release, a $100 mandatory

special assessment, no fine and no restitution. (ROA.86-88).

On appeal, Hernandez challenged the reasonableness of his sentence and

preserved for further review the issue concerning the constitutionality of 18 U.S.C. §

922(g), recognizing that the issue was foreclosed by circuit precedent. The Fifth

Circuit affirmed the sentence and overruled Hernandez’s constitutional challenge to

the statute. See United States v. Hernandez, 812 Fed. Appx. 253, 254 (5th Cir. 2020).

5

REASONS FOR GRANTING THIS PETITION

I. This Court should grant certiorari to determine whether 18 U.S.C. §

922(g) is unconstitutional by exceeding the scope of the commerce clause

and whether the statute requires knowledge of the interstate commerce

element?

Petitioner Hernandez pleaded guilty to one count of possession of a firearm in

interstate commerce after having sustained a felony conviction, and received a 96month sentence of imprisonment. In pleading guilty, however, he did not admit that

he knew the firearm had moved in interstate commerce, nor was he advised that was

an element of the offence. The district court nonetheless accepted the plea.

On direct appeal, Hernandez argued that his conviction under 18 U.S.C. §

922(g) was unconstitutional because it did not require knowledge of the interstate

commerce element. Hernandez also argued that § 922(g) is unconstitutional because

it allows for a conviction based upon the firearm in question merely traveling from

one state to another at some undisclosed point in time and without the knowledge of

the defendant. The court of appeals rejected these arguments based upon previous

precedent, and in the process incorrectly identified Rehaif as foreclosing the issue:

Hernandez's argument that past movement of a firearm in interstate

commerce is insufficient is foreclosed by United States v. Daugherty, 264 F.3d

513, 518 (5th Cir. 2001); United States v. Rawls, 85 F.3d 240, 242-43 (5th Cir.

1996). His argument challenging the constitutionality of § 922(g) as exceeding

the Commerce Clause is foreclosed by United States v. Alcantar, 733 F.3d 143,

145-46 (5th Cir. 2013). His mens rea argument is foreclosed by United States

v. Rose, 587 F.3d 695, 705-06 (5th Cir. 2009); United States v. Dancy, 861 F.2d

77, 80-82 (5th Cir. 1988); Rehaif v. United States, ––– U.S. ––––, 139 S. Ct.

2191, 2194, 2196, 204 L.Ed.2d 594 (2019).

United States v. Hernandez, 812 Fed. Appx. at 254.

Does the interstate commerce element, as interpreted by the Courts

violated the Commerce Clause?

6

In our federal system, the National Government possesses only limited powers;

the States and the people retain the remainder.” Nat’l Fed’n of Indep. Bus. v. Sebelius,

132 S. Ct. 2566, 2577 (2012) (Roberts. C.J.) (plurality op.). Powers outside those

explicitly enumerated by the Constitution are denied to the National Government.

See id. at 2577 (“The Constitution's express conferral of some powers makes clear

that it does not grant others.”) (Roberts. C.J.) (plurality op.). There is no general

federal police power. See United States v. Morrison, 529 U.S. 598, 618 619 (2000).

Every exercise of Congressional power must be justified by reference to a particular

grant of authority. See Nat’l Fed’n of Indep. Bus., 132 S. Ct. at 2578 (Roberts. C.J.)

(plurality op.) (“The Federal Government has expanded dramatically over the past

two centuries, but it still must show that a constitutional grant of power authorizes

each of its actions.”) A limited central government promotes accountability and

“protects the liberty of the individual from arbitrary power.” Bond v. United States,

564 U.S. 211, 220 (2011). The Constitution grants to Congress a power to “regulate

Commerce with foreign Nations, and among the several States, and with the Indian

Tribes.” U.S. Constitution, Art. I, ' 8, cl. 3. But this power “must be read carefully to

avoid creating a general federal authority akin to the police power.” Nat’l Fed’n of

Indep. Bus., 132 S. Ct. at 2578 (Roberts. C.J.) (plurality op.).

The phrase “in and affecting commerce” is defined by Fifth Circuit precedent

to include a situation where the firearm crossed state lines at some unspecified point

in the past unrelated to the defendant or his or her present possession, and, according

to this Circuit, the statue does not require that the defendant purchased the firearm,

7

or possessed it in connection with any manner of commercial transaction. See, United

States v. Wallace, 889 F.2d 580, 583 (5th Cir. 1989). As so interpreted, the Fifth

Circuit still has held that 18 U.S.C. § 922(g) does not exceed Congress’s power to

regulate interstate commerce. See id. at 583. But the opinion of five Justices in Nat’l

Fed’n of Indep. Bus. v. Sebelius casts serious doubt on that conclusion. Five Justices

in that case concluded that the power to regulate commerce does not include the

power to compel commerce. See id. at. 2586 (Roberts, C.J.) (plurality op.); id. at. 2642

(Scalia, .J., dissenting). The inescapable conclusion is that to fall within the commerce

power, federal action must not merely affect commerce, it must act directly on a

commercial activity. After all, the failure of individuals to purchase health insurance

- at issue in NFIB - surely affected interstate commerce. See id. at. 2642 (Scalia, .J.,

dissenting) (“Failure to act does result in an effect on commerce . . .”) But because

inaction was not a commercial act, it was beyond the power of Congress to prohibit.

Similarly, mere possession of a firearm that may have crossed state lines years ago

is not a commercial act. It does not involve the purchase or sale of any commodity.

Certainly, possession of such a firearm does not amount to an act of interstate

commerce.

The factual basis for the guilty plea in the factual résumé states only that “The

ATF Special Agent was also able to determine that the firearm was manufactured in

the state of Maine, thereby affecting interstate commerce.” (ROA.60,79). Thus, there

is an insufficient factual basis to establish a valid federal offense within the

8

constitution. If this conduct violates 18 U.S.C. § 922(g), that statute violates the

commerce clause facially and as applied.

This Court should grant review to determine whether the interstate commerce

element of 18 U.S.C. § 922(g), as applied by the courts, violates the Commerce Clause.

Does §§ 922(g) and 924(a) require knowledge of the interstate

commerce element?

Section 924(a) of Title 18 provides for criminal punishment to anyone who

“knowingly violates subsection ... (g).” In Rehaif v. United States, 139 S.Ct. 2191 (June

21, 2019), this Court held:

We conclude that in a prosecution under 18 U.S.C. §922(g) and § 924(a)(2), the

Government must prove both that the defendant knew he possessed a firearm

and that he knew he belonged to the relevant category of persons barred from

possessing a firearm. We express no view, however, about what precisely the

government must prove to establish a defendant’s knowledge of status in

respect to other § 922(g) provisions not at issue here.

Id. at 2200.

In 1986, Congress passed the Firearms Owners Protections Act [FOPA]. A

major thrust of this legislation was to alter the previous federal criminal law

governing firearms by explicitly doing away with strict liability or quasi strict liability

for offenses. Thus, Congress added the requirement in 18 U.S.C. § 924, that for a

person to be liable for punishment, the government must prove that the person either

willfully or knowing violated the relevant section of § 922(g). The explicit language of

the relevant statute in this case allows the government to punish “[w]hoever

knowingly violates subsection . . . (g) . . . of 922 . . . .” (Emphasis added.) The statute

simply does not punish whoever “knowingly possesses a firearm” if that person

9

happens to be a felon. Nor does the statute punish whoever “knowingly possesses a

firearm” if the firearm possession happens to be in or affect interstate commerce. It

punishes “whoever knowing violates” the statute.

Knowing possession of a weapon is obviously not by itself a crime. The statute

requires a knowing violation of § 922(g). Thus, by the plain words of the statute, the

defendant must know these three things: that he is a felon, that he possessed a

weapon, and that the possession of the weapon was in or affecting interstate

commerce.

This Court has held that the knowing violation requirement in 18 U.S.C. § 924

requires the government to prove that the defendant did have “knowledge of the facts

that constitute the offense.” Bryan v. United States, 524 U.S. 184, 193 (1998) Yet

again, in Flores-Figueroa v. United States, 556 U.S. 646 (2009), following a line of

cases, the Court held that when a statute requires the government to prove the

defendant acted knowingly, it must proof he knew the facts that made his conduct a

federal offense. Id. at 650-57 1891. In Staples v. United States, 511 U.S. 600, 618-19

(1994), the Court held that, even when a statute has no explicit “knowing” element,

the government must prove that a defendant had knowledge of “the facts that make

his conduct illegal.”

In Staples, this Court noted that there is a “presumption that a defendant must

know the facts that make his conduct illegal” which “should apply” especially where

the alternative is that the statute “would require the defendant to have knowledge

only of traditionally lawful conduct. . . .” Id. Here, the knowing possession of a firearm

10

is not only traditionally lawful conduct, it is a fundamental right. See District of

Columbia v. Heller, 554 U.S. 570, 602 (2008). Also, the Supreme Court noted that the

“severe penalty” of a potential 10-year sentence suggested that Congress did not

intend to jettison the usual requirement that the defendant know the facts that make

his conduct illegal. See, Staples, 511 U.S. at 618. In this case, the maximum penalty

for a § 922(g) case can be up to life, if enhancements apply. See 18 U.S.C. § 924(e).

Further support is found in McFadden v. United States, 135 S. Ct. 2298 2015),

McFadden construed 21 U.S.C. § 841(a)(1) (the Controlled Substances Act, or “CSA”)

as incorporated by 21 U.S.C. § 802(32)(A) (the Controlled Substance Analogue

Enforcement Act of 1986, or “Analogue Act”); United States v. X Citement Video, 513

U.S. 64, 72 (1994); Liparota v. United States, 471 U.S. 419, 423 (1985); and Morissette

v. United States, 342 U.S. 246, 273 (1952).

Congress explicitly stated that the government must prove the defendant knew

the facts and circumstances that constitute the offense. “It is the Committee’s intent,

that unless otherwise specified, the knowing state of mind shall apply to

circumstances and results.” H.R. Rep. No. 99-495, 99 Cong., 2d Sess. 25-26, reprinted

in 1986 U.S. Code Cong. and Ad.News 1327, 1351-52. As noted above, a major thrust

of the FOPA was to completely alter the gun laws to abolish or alter the perceived

“strict liability” created by the absence of any scienter requirement in the statute,

and by the Supreme Court’s decision in United States v. Freed, 401 U.S. 601, 609

(1971).

11

Accordingly, this Court should grant review to determine whether the

knowingly mens res applies to the interstate commerce element.

CONCLUSION

Petitioner respectfully submits that this Court should grant certiorari to

review the judgment of the United States Court of Appeals for the Fifth Circuit.

Respectfully submitted this 11th day of December, 2020.

JASON D. HAWKINS

Federal Public Defender

Northern District of Texas

/s/ Christopher A. Curtis

Christopher Curtis

Assistant Federal Public Defender

Federal Public Defender's Office

819 Taylor Street, Room 9A10

Fort Worth, Texas 76102

Telephone: (978) 767-2746

E-mail: Chris_Curtis@fd.org

Attorney for Petitioner

12