Petition for Writ of Certiorari — Andreqio Stevens, Petitioner v. United States

No.

in the

Supreme Court

of the

United States

Term,

ANDREQIO STEVENS,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI FROM

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DEBORAH L. WILLIAMS

Federal Public Defender Southern District of Ohio

Kevin M. Schad

Appellate Director

Office of the Federal Public Defender

Southern District of Ohio

250 HK. Fifth St. Suite 350

Cincinnati OH 45202

(513) 929-4834

Kevin_schad@fd.org

Counsel for Petitioner

QUESTION PRESENTED

18 U.S.C. § 922(g) criminalizes three different offenses relating to a firearm for

“orohibited persons”: transporting a firearm, possessing a firearm, and receiving a

firearm. Moreover, Congress has written a different commerce clause jurisdictional

element for each offense: the text for transporting and receiving offenses requires

the Government to prove that the firearm was “shipped or transported in interstate

or foreign commerce,” while possession of a firearm must be proven to be “in or

affecting commerce.”

Does the different language used by Congress as to the possession crime require a

jury to find more than a prior shipping or transportation of the firearm across state

lines?

il

RELATED CASES

Pursuant to Supreme Court Rule 14(1)(b)Gii), Petitioner submits the following cases

which are directly related to this Petition:

none

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED il

RELATED CASES 11

TABLE OF AUTHORITIES Vv

OPINION BELOW 1

JURISDICTION 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 2

STATEMENT OF THE CASE 3

REASON FOR GRANTING THE WRIT

The plain language of 18 U.S.C. § 922(g) requires that the Government

prove that the possession of the firearm occurred in or affected interstate

commerce 7

Any reliance on this Court’s decision in Scarborough v. United States,

431 U.S. 568, 97 8.Ct. 1963, 52 L.Ed.2d 582 (1977) is misplaced 9

The legislative history relating to the criminalization of weapons

possession supports the Petitioner’s reading of the statute 13

CONCLUSION 17

APPENDIX X

iv

TABLE OF AUTHORITIES

Cases

Alderman v. United States, 562 U.S. 1168, 1818S. Ct. 700, 702, 178 L. Ed. 2d 799

(DOV) ceeccccsvecccsessesussessessesuessssesucsusavcuesucecucsucsesucavsucsussesucsucsesacsesussussesarsassuvavsaesassusassasseensseceeenees 10

Barrett v. United States, 423 U.S. 212, 225, 96S. Ct. 498, 505, 46 L. Ed. 2d 450

(L7G) coccccccccssesscscsssscssssvesececsesecsessesvssesesussesucsesusecscassesacstsucaesusassucacsusavsusavsussesacsecarsecacaesesavanenees 14

Bostock v. Clayton Cnty., Georgia, 140 8. Ct..1731, 1749, 207 L. Ed. 2d 218 (2020) 13

BP P.L.C. v. Mayor & City Council of Baltimore, --- §.Ct. ----, 209 L. Ed. 2d 631, 141

S. Ct. 1532, 1542 (2021) voicccccccccssessscessessessesessssssssssesesssssessssseesssesssssussesessesssessssesesesees 16

Intel Corp. Inv. Pol'y Comm. v. Sulyma, 140 S. Ct. 768, 777, 206 L. Ed. 2d 108

(2OQO) vreccecsvsccessresecsecsnecsecsecsuessessssucsussussessessuesanssvssessvesucsuessvsassassssssneaesssesasssessessteavsasssesseeseeseaess 8

Jimenez v. Quarterman, 555 U.S. 118, 118, 129 S. Ct. 681, 685, 172 L. Ed. 2d 475

C0101) en 7

Lamie v. U.S. Tr., 540 U.S. 526, 534, 124 S. Ct. 1028, 1030, 157 L. Ed. 2d 1024

(2OOA) v.ccecccscsesssesseseesrsssecsstsnessessessussucsessevssessessssessussessnssussasesssuessessesevessessssssssesssetiseseessesesseeseeess 9

Mathis v. United States, 579 U.S. 500, 186 S. Ct. 2248, 195 L. Ed. 2d 604 (2016)..... 6

McDonnell v. United States, 579 U.S. 550, 569, 186 S. Ct. 2355, 2368, 195 L. Ed. 2d

G39 (QOIG) vceccccccssssccssssscscsssecsssesscsvscsscsvscssssesssesscscssesescsessvscsvssssssnsscsvsassssssscavsvsscasessessssesseneness 8

New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 2138 L. Ed. 2d 387, 142 S. Ct.

QV, 2126 (2022) occccccccccsccsescssescscssssesessscsssesscscscsvsscsvsscssscsvssssesssscssesesvsescsvsececevsvsseneseeees 15

Nielsen v. Preap, 208 L. Ed. 2d 333, 189 S. Ct. 954, 964 (2019)... ccccscceseesseeeneees 7

Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480, 209 L. Ed. 2d 433 (2021)... 7

Rehaif v. United States, 189 S. Ct. 2191, 204 L. Ed. 2d 594 (2019)... 9, 13

Scarborough v. United States, 431 U.S. 563, 97 S. Ct. 19638, 52 L. Ed. 2d 582 (1977)

segcvecepecsuecsssececenacesunaceesssseuscaeceeauaceuauscensssceesssevecauscsessssecsesvensussecesescesacascnuuessassesecunseseeaeens 4,9, 10

Southwest Airlines Co. v. Saxon, -*- S.Ct. --*, 218 L. Ed. 2d 27, 142 8. Ct. 1788, 1788

(2OQD) vcececccccocesescrveceessessavessesuessusssevssessvesussessussuessvcssessvsssessussrcsseesesssvssvessecsseessessessucssessssaseeseeseen 7

United States v. Bass, 404 U.S. 336, 337, 92 S. Ct. 515, 517, 30 L. Ed. 2d 488 (1971)

scusescecesseceuccaesencccenceeuanscesaeceseuacevsnacecesaatecusceseccnseesesseccussuscectevecsesscuedsscusetecuessseueateteseaesenaes 11, 14

United States v. Batchelder, 442 U.S. 114, 116, 99 S. Ct. 2198, 2200 (1979)....... 11, 14

United States v. Cook, 970 F.3d 866, 872 (7th Cir. 2020) viccccccsscsssssceseessessseseessees 12

United States v. Garcia-Hernandez, 803 F.3d 994, 997 (8th Cir. 2015) vec 12

United States v. Gonzales, 2022 WL 17725388, at *6 (LOth Cir. 2022) vce 13

United States v. Hatcher, 487 F. App'x 416, 417 (9th Cir. 2012) voce 13

V

United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) .ccccccccsccssssescseeeesneeeeeeees 12

United States v. Massey, 849 F.3d 262, 264 (5th Cir. 2017) v.cccccccscsesesseeeeeneeeee 12

United States v. Nathan, 202 F.3d 230, 234 (4th Cir. 2000) ..cccccsssessesseseeseeeeseeeeens 12

United States v. Tucker, 511 F. App'x 166, 169 (8d Cir. 20138) ccc 12

United States v. Weems, 322 F.3d 18, 26 (1st Cir. 2008) ..cccccccsesseeseseeeeteseeneeneseaeees 12

United States v. Wright, 607 F.3d 708, 715-16 (11th Cir. 2010) ...ccsecesteseeeeteeteeeens 13

Wooden v. United States, 212 L. Ed. 2d 187, 142 S. Ct. 1068, 1072 (2022)... 13

Statutes

18 U.S.C. § 120 D ceccccccescssescssesssessseessessssessssessessssessssssssssvssssssssecsusessessusessvecssecssesanecsnecanecaneeeeeenes 11

18 U.S.C.A. § 922 ccccccccccssecsssecssecssecssessssssssessuesssesssessesssvssssscssscsusesssscsusessccasecssscanveaseesseeesneceueeeeees 6

Firearms Owners’ Protection Act of 1986 vcccccccccscsssssssssecssessecsessssssessreeersssessseavssesetsssesseesees 14

Other Authorities

Public Law 99-308, May 19, 1986, 100 Stat 449, Section 1 oc eeeeseessetseneeneeeees 15

Vi

No.

in the

Supreme Court

of the

United States

Term,

ANDREQIO STEVENS,

Petitioner,

vs.

UNITED STATES OF AMERICA

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI FROM

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Petitioner, Andreqio Stevens, respectfully prays that a writ of certiorari issue to

review the judgment and opinion of the United States Court of Appeals for the Sixth

Circuit entered in the above-entitled proceeding on October 20, 2022.

OPINION BELOW

The Sixth Circuit’s opinion in this matter is unpublished and is attached hereto as

Appendix 1. The Sixth Circuit’s denied en banc review on December 29, 2022 1n an

unpublished opinion attached as Appendix 2.

JURISDICTION

The Sixth Circuit denied Petitioner’s appeal on October 20, 2022, and en banc review

on December 29, 2022. This petition is timely filed. The Court’s jurisdiction in

invoked pursuant 28 U.S.C. § 1291 and Supreme Court Rule 12.

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

Article I, Section 8, Clause 3 of the United States Constitution provides:

The Congress shall have Power... To regulate commerce with

foreign nations, and among the several states, and with the

Indian tribes

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

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

in any court of, a crime punishable by imprisonment for a term

exceeding one year [ | to ship or transport in interstate or foreign

commerce, or possess in or affecting commerce, any firearm or

ammunition; or to receive any firearm or ammunition which has

been shipped or transported in interstate or foreign commerce.

STATEMENT OF THE CASE

On March 12, 2020, the Cincinnati 911 service received a few calls that a

man was brandishing a gun outside the Eatondale apartments in Cincinnati, Ohio.

Among the officers to respond to this call was Sergeant Robert Lind. Lind pulled up

in his vehicle and noticed a black male with a firearm in the parking lot of the

apartments. He appeared to point the gun at several people (and a minivan), and

pretended to pull the trigger, simulating a recoil motion. When other uniform

officers showed up, the black male ran into one of the apartment buildings. Officers

eventually concluded that the black male was in an apartment on the third floor.

They knocked on the door and announced their presence; however, no one answered.

They then yelled at the occupants to surrender — again, there was no response from

the apartment. Eventually, a person in the apartment asked whether the officers

had a warrant, to which at least one officer replied “yes.” Officers did not in fact have

a warrant. Petitioner Andreqio Stevens came out of the apartment immediately

upon hearing officers had a warrant. He lay on the ground and was arrested. After

obtaining a search warrant, officers entered the apartment, and found a Hi-Point

pistol.

Stevens was subsequently named in a one count indictment in the Southern

District of Ohio charging him as follows: “knowing he had previously been convicted

of a crime punishable by imprisonment for a term exceeding one year, knowingly

possessed a firearm and ammunition, that is, a .45 caliber Hi-Point pistol, model

JHP, serial number X4 10075 I, and six bullets, and the firearms and ammunition

were in and affecting commerce.” Stevens moved to dismiss the indictment, arguing

that 18 U.S.C. §922(g) charges separate offenses, including possessing a firearm “in

or affecting commerce,” and receiving a firearm “which has been shipped or

transported in interstate or foreign commerce.” As to the former (which was charged

as to Stevens), the Government admitted it only had evidence proving the latter form

of interstate commerce nexus. The district court denied this motion without a

hearing, holding this Court’s decision in Scarborough v. United States, 431 U.S. 563,

97 S. Ct. 1963, 52 L. Ed. 2d 582 (1977) foreclosed this claim.

The parties subsequently entered into a conditional plea agreement, whereby

Stevens agreed to plead guilty to the charge, in exchange for the right to appeal the

motion to dismiss. On November 10, 2021, Stevens was sentenced to 60 months

incarceration, to be followed by three years supervised release.

On appeal to the Sixth Circuit, Petitioner Stevens renewed his claim that 18

U.S.C. § 922 contained three separate offenses, and that the proof of the commerce

clause element as to his particular offense fell short of the statutory requirement.

The Sixth Circuit determined that Stevens was correct that 18 U.S.C. § 922 contains

three separate offenses, with three separate commerce clause elements. (Appendix 1,

p.4) However, the court found:

Scarborough v. United States teaches that the

requirement that a gun have been “in commerce or

affecting commerce” is met by proof that the gun

“oreviously traveled in interstate commerce.” 431 U.S. 563,

566—67 (1977). No surprise, we have said the same thing.

We indeed have held that a stipulation like the one

provided by Stevens—that the gun traveled in interstate

commerce—suffices “to meet § 922(g)(1)’s ‘in or affecting

commerce’ requirement.”

(Appendix 1, p.3)

The Sixth Circuit rejected the premise that the element “in or affecting commerce”

was a more stringent requirement than prior interstate travel; rather, “to the extent

there is a difference between the jurisdictional prerequisites of the three provisions,

Chesney shows that ‘in or affecting commerce’ is satisfied merely by prior

transportation across state lines and is the broader term.” (Appendix 1, p.5) The

court upheld the conviction, and denied a petition for rehearing en banc. (Appendix

2)

REASON FOR GRANTING THE WRIT

18 U.S.C. §922(g) (1) states that “Lilt shall be unlawful for any person-who has

been convicted in any court of, a crime punishable by imprisonment for a term

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

possess in or affecting commerce, any firearm or ammunition; or to receive any

firearm or ammunition which has been shipped or transported in interstate or

foreign commerce.” 18 U.S.C.A. § 922 (West). As this Court’s decision in Mathis v.

United States, 579 U.S. 500, 136 S. Ct. 2248, 195 L. Ed. 2d 604 (2016) instructs, the

statute outlines three separate crimes: the shipment/transportation of a firearm, the

possession of a firearm, and the receipt of a firearm. Further, each crime has a

different interstate commerce element: to prove shipping or transporting a firearm,

the Government must prove that the firearm is shipped or transported “in interstate

or foreign commerce;” possession of a firearm must be “in or affecting interstate

commerce;” and receipt of a firearm requires only proof that the firearm has been

“shipped or transported in interstate or foreign commerce” at some prior time.

Petitioner Stevens was charged with possession of a firearm. The plain language of

the statute requires the Government to present additional evidence to prove this

offense over and above that the firearm had been previously shipped in interstate

commerce. Because they did not, the conviction must be vacated.

A. The plain language of 18 U.S.C. § 922(g) requires that the Government

prove that the possession of the firearm occurred in or affected

interstate commerce

The plain language of 18 U.S.C. § 922(g) requires that, for a possession of a

firearm offense, the Government prove that the possession itself was in or affecting

interstate commerce.

“With any question of statutory interpretation, our analysis begins with the

plain language of the statute.” Jimenez v. Quarterman, 555 U.S. 118, 118, 129S. Ct.

681, 685, 172 L. Ed. 2d 475 (2009). “When called on to resolve a dispute over a

statute's meaning, this Court normally seeks to afford the law's terms their ordinary

meaning at the time Congress adopted them.” Niz-Chavez v. Garland, 141 S.Ct.

1474, 1480, 209 L. Ed. 2d 433 (2021). “To discern that ordinary meaning, those

words ‘must be read’ and interpreted ‘in their context,’ not in isolation.” Southwest

Airlines Co. v. Saxon, *- S.Ct. ---, 213 L. Ed. 2d 27, 142 S. Ct. 1788, 1788 (2022).

As the text of Section 922(g)(1) clarifies, it is the prohibited person’s

possession, and not the firearm or ammunition, that must affect commerce, and that

effect must be contemporaneous with any intrastate possession. For example, the

adverbial phrase “in or affecting commerce” directly follows—and clearly modifies—

the verb “possess”; it does not—and cannot—modify the nouns “firearm or

ammunition.” Nielsen v. Preap, 208 L. Ed. 2d 3338, 189 S. Ct. 954, 964

(2019)(reasoning that, because “an adverb cannot modify a noun,” an adverbial

phrase cannot be read to modify a noun). This conclusion is reinforced by the

present-participle phrase “affecting commerce,” which indicates that the effect on

interstate commerce must occur at the same time as the possession to fall within the

ambit of Section 922(g)(1).

That the statute requires a present effect on interstate commerce is further

t74

enforced by a reading of the rest of the statute. This Court will “generally presumle]

that Congress acts intentionally and purposely when it includes particular language

999

in one section of a statute but omits it in another.” Jntel Corp. Inv. Pol'y Comm. v.

Sulyma, 140 S. Ct. 768, 777, 206 L. Ed. 2d 1038 (2020). Here, as to each of the section

922(¢) offenses, Congress chose to include different language as to each of the

commerce clause elements. In the case of receipt of a firearm, the Government need

only prove that the firearm has been “shipped or transported in interstate or foreign

commerce” at some prior time. Ifthe firearm is shipped or transported, it must be

done so “in interstate or foreign commerce.” Finally, where the Government seeks to

prove possession, the firearm must be possessed “in or affecting interstate

commerce.” This Court consistently reads criminal statutes to “avoid the giving of

unintended breadth to the Acts of Congress.” McDonnell vy. United States, 579 U.S.

550, 569, 136 S. Ct. 2355, 2368, 195 L. Ed. 2d 639 (2016). Reading the interstate

commerce clause element for possession to require mere past shipment of the

firearm in interstate commerce would defeat Congress’s express intent for this

statute. The Sixth Circuit’s broad reading must therefore be rejected.

B. Any reliance on this Court’s decision in Scarborough v. United States,

431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977) is misplaced

The Sixth Circuit relied on this Court’s decision in Scarborough v. United

States, 431 U.S. 563 (1977) for the proposition that 18 U.S.C. § 922(g)’s “in or

affecting interstate commerce” for possession of a firearm “is satisfied merely by

prior transportation across state lines.” (Appendix 1, p.5). The Sixth Circuit’s

reliance on Scarborough is wrong. First, the Court in Scarborough addressed only 18

U.S.C. § 1202, and not 18 U.S.C. § 922. Second and more important, Congress used

the decision in Scarborough as a guidepost when creating 18 U.S.C. §922, creating

the limited commerce clause language.

“The starting point in discerning congressional intent is the existing statutory

text [] and not the predecessor statutes. Lamie v. U.S. Tr., 540 U.S. 526, 534, 1248.

Ct. 1023, 1030, 157 L. Ed. 2d 1024 (2004). It is undisputed that Scarborough

interprets 18 U.S.C. § 1202, a predecessor statute. Scarborough provides no insight,

much less precedential effect on the current 18 U.S.C. § 922. Indeed, this Court has

noted the inherent problems in utilizing pre-1986 rulings in support of the

interpretation of the current 18 U.S.C. §922(g). In Rehaifv. United States, 139 S.

Ct. 2191, 204 L. Ed. 2d 594 (2019), the Court noted:

10

Any pre-1986 consensus involved the statute [§ 922(g)] as

it read prior to 1986 — without any explicit scienter

provision.. But Congress in 1986 added a provision

clarifying that a defendant could be convicted only if he

violated the prohibition on firearm possession “knowingly.”

This addition, which would serve no apparent purpose

under the Government’s view, makes it all but impossible

to draw any inference that Congress intended to ratify a

pre-existing consensus when, in 1986, it amended the

statute.

139 S.Ct. at 2199.

Moreover, Justices Scalia and Thomas in their dissent in Alderman vy. United

States, specifically noted: “Scarborough, as the lower courts have read it, cannot be

reconciled with Lopez because it reduces the constitutional analysis to the mere

identification of a jurisdictional hook like the one in § 1202(a).” 562 U.S. 1163, 181 S.

\

Ct. 700, 702, 178 L. Ed. 2d 799 (2011). Because Scarborough interprets a different

statutory scheme, the various circuit courts have erred in relying on it to interpret

18 U.S.C. § 922.

While the Court in Scarborough did hold that the phrase “in commerce or

affecting commerce” contained in 18 U.S.C. § 1202 could be met when “the firearm

possessed by the convicted felon traveled at some time in interstate commerce,” 431

U.S. at 568-572, it was utilizing a different statutory scheme than the current 18

U.S.C. § 922(g). Specifically, the language in 18 U.S.C. § 1202 was as follows:

Any person who—

11

(1) has been convicted by a court of the United States or of a State

or any political subdivision thereof of a felony, or

(2) has been discharged from the Armed Forces under

dishonorable conditions, or

(3) has been adjudged by a court of the United States or of a State

or any political subdivision thereof of being mentally incompetent,

or

(4) having been a citizen of the United States has renounced his

citizenship, or

(5) being an alien is illegally or unlawfully in the United States,

and who receives, possesses, or transports in commerce or

affecting commerce, after the date of enactment of this Act, any

firearm shall be fined not more than $10,000 or imprisoned for

not more than two years, or both.

18 U.S.C. § 1201 (emphasis added), United States v. Bass, 404 U.S. 336, 337, 92

S.Ct. 515, 517, 80 L.Ed.2d 488 (1971).

In addition to 18 U.S.C. §1201, 18 U.S.C. §922(h) also prohibited “any person...

who has been convicted in any court of, a crime punishable by imprisonment for a

term exceeding one year. ... to receive any firearm or ammunition which has been

shipped or transported in interstate or foreign commerce.” United States v.

Batchelder, 442. U.S. 114, 116, 99 S. Ct. 2198, 2200 (1979)(citing the language of the

statute). Thus, this Court recognized “the partial redundancy of §§ 922(h) and

1202(a), both as to the conduct they proscribe and the individuals they reach.” 442

U.S. at 118. In United States v. Bass, the Court held that the ambiguity of the

interplay between these two statutes required a narrow reading under the doctrine

of the rule of lenity. 404 U.S. at 847-349.

12

This Court’s decision in Scarborough prompted Congress to rewrite the laws on

weapons possession to blunt the impact of the Court’s decision. Knowing this Court

had chastised it for its imprecision in language, and the implications of using

different commerce clause phrasing for criminal statutes, Congress made the

knowing choice to limit possession offenses when repealing 18 U.S.C. § 1201 and

| reworking § 922(g) in 1986. Where section 1201 prohibited receiving, possession,

and transporting as means, Congress chose to split out these into separate offenses,

each with their own unique commerce clause element. This choice, given

Scarborough and Bass, was a clear signal to limit the scope of possession offenses to

not include those instances where the firearm had been merely “shipped or

transported in interstate or foreign commerce.” Had Congress intended to leave

Scarborough in place, it would have left (much as it had in §1201) the commerce

clause as a unified element.

Petitioner Stevens concedes that, like the Sixth Circuit, every other circuit has

relied on Scarborough in the same manner. See United States v. Weems, 322 F.3d

18, 26 (1st Cir. 2003); United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995);

United States v. Tucker, 511 F. App'x 166, 169 (3d Cir. 2013); United States v.

Nathan, 202 F.3d 230, 234 (4th Cir. 2000); United States v. Massey, 849 F.3d 262,

264 (5th Cir. 2017); United States v. Cook, 970 F.3d 866, 872 (7th Cir. 2020); United

States v. Garcia-Hernandez, 803 F.3d 994, 997 (8th Cir. 2015); United States v.

13

Hatcher, 487 F. App'x 416, 417 (9th Cir. 2012); United States v. Gonzales, 2022 WL

177253888, at *6 (10th Cir. 2022); United States v. Wright, 607 F.3d 708, 715-16

(11th Cir. 2010). Each of the circuits misread the current statute. The fact that all

circuits have come to the wrong consensus has not prevented this Court from

granting certiorari review to correct the mistake. Rehaifyv. United States, 139 8. Ct.

at 2195. Scarborough does not interpret or instruct on the commerce clause element

for possession of a firearm pursuant to current 18 U.S.C. § 922(g), and it should not

be relied upon to do so.

C. The legislative history relating to the criminalization of weapons

possession supports the Petitioner’s reading of the statute

Finally, a review of the legislative history relating to the criminalization of

possession of a weapon enforces the plain wording reading of the statute, and limits

possession prosecutions to those instances where the Government proves that the

weapon was possessed “in and affecting commerce.”

Where there is ambiguity in the language of a statute, this Court has

consulted legislative history to provide clarity. Bostock v. Clayton Cnty., Georgia,

140 S. Ct. 1731, 1749, 207 L. Ed. 2d 218 (2020); see also Wooden v. United States,

212 L. Ed. 2d 187, 142 S. Ct. 1063, 1072 (2022)(statutory history and purpose can

help to confirm a reading of a statute).

14

Beginning in 1938, Congress first regulated the possession of firearm by

certain persons through the Federal Firearms Act (codified in part at 18 U.S.C. §

1202). This Act prohibited persons who were fugitives or had been convicted of

crimes of violence from receiving “any firearm or ammunition which has been

shipped or transported in interstate or foreign commerce.” Barrett v. United States,

423 U.S. 212, 225, 96 S. Ct. 498, 505, 46 L. Ed. 2d 450 (1976). Prior to this, it does

not appear there was any federal prohibition on the possession of firearms by a

convicted felon.

Congress expanded its role over the possession of firearms by felons in 1968

with the Omnibus Crime Control and Safe Streets Act of 1968. That Act created 18

U.S.C. §922, which prohibited the transportation or receipt of a firearm “which has

been shipped or transported in interstate or foreign commerce,” United States v.

Batchelder, 442 U.S. at 118; and amended 18 U.S.C. §1202, to prohibit the receipt,

possession, or transport of a firearm “in commerce or affecting commerce.” United

States v. Bass, 404 U.S. at 387. Then, in 1977, the Supreme Court decided

Scarborough. Scarborough and other factors led to the 1986 passage of the

Firearms Owners’ Protection Act of 1986. This Act repealed 18 U.S.C. § 1202 in its

entirety and re-wrote 18 U.S.C. § 922 into its current form — that form containing

three separate commerce clause elements, with three different burdens of proof.

Congress intentionally delineated the type of tie to commerce that each crime under

15

§ 922(g) needed — and in the case of possession, that possession itself had to be tied

to the interstate commerce itself.

Lest there be any question as to Congress’s intent to limit the reach of federal

prosecutions, the Court need look no further than the preamble to the Firearms

Owners’ Protection Act of 1986, which states in part:

(b) CONGRESSIONAL FINDINGS. — The Congress finds that -

(1) the rights of citizens — (A) to keep and bear arms under the

Second Amendment to the United States Constitution; .... and

(D) against unconstitutional exercise of authority under the ninth

and tenth amendments; require additional legislation to correct

existing firearms statutes and enforcement policies.

Public Law 99-308, May 19, 1986, 100 Stat 449, Section 1

Congress’s clear intent to limit federal reach on the issue of possession of a firearm

follows this Court’s reading of the Second Amendment. “[W]hen the Second

Amendment's plain text covers an individual's conduct, the Constitution

presumptively protects that conduct. To justify its regulation, the government may

not simply posit that the regulation promotes an important interest.” New York

State Rifle & Pistol Ass'n, Inc. v. Bruen, 213 L. Ed. 2d 387, 142 8S. Ct. 2111, 2126

(2022).

Where the plain language of the statute 1s clear, and the history clear, the result

is clear: possession of a firearm prosecutions under 18 U.S.C. § 922(g) require more

than proof that the firearm had traveled in interstate commerce at some point in the

16

past. The Government conceded at the district court they could prove the interstate

commerce element only through proof that the weapon had been transported at some

prior point through interstate commerce. Thus, Petition Steven’s conviction must be

vacated. “[Tl]his Court's task is to discern and apply the law's plain meaning as

faithfully as we can, not ‘to assess the consequences of each approach and adopt the

one that produces the least mischief.” BP P.L.C. v. Mayor & City Council of

Baltimore, --- S.Ct. ----, 209 L. Ed. 2d 631, 141 S. Ct. 1532, 1542 (2021). Here, the

plain language of the statute requires vacation of the conviction. That this reading

of the statute upends the circuits understanding of the law on possession of a

firearm by a convicted felon is of no moment — the law requires this Court effectuate

Congressional intent.

17

CONCLUSION

Stevens requests this Court grant certiorari, reverse the Sixth Circuit’s decision, and

remand for dismissal of his conviction.

Respectfully submitted,

DEBORAH L. WILLIAMS

Federal Public Detender

ca

Kevin M. Schad=~

Appellate Director

Office of the Federal Public Defender

Southern District of Ohio

Appellate Director

250 E. Fifth St.

Suite 350

Cincinnati OH 45202

(513) 929-4834

Kevin_schad@fd.org

Counsel for Petitioner

APPENDIX

1. COURT OF APPEALS ORDER October 20, 2022

2. EN BANC DENIAL December 29, 2022

Case: 21-4065 Document: 27-2 Filed: 10/20/2022 Page: 1

NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0421n.06

Case No. 21-4065

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

( \

FILED

Oct 20, 2022

UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk

Ye y,

Plaintiff-Appellee,

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF

OHIO

V.

ANDREQIO STEVENS,

Defendant-Appellant.

OPINION

Before: SUTTON, Chief Judge; BOGGS and KETHLEDGE, Circuit Judges.

SUTTON, Chief Judge. Andregio Stevens threatened a group of children with a pistol.

When officers arrived in response, he fled into his apartment. After an hour-long siege, he

surrendered to police. All of this led to a felon-in-possession guilty plea and a sentence of 60

months. Stevens appeals the denial of his motions to dismiss the indictment and to suppress the

discovery of his gun. We affirm.

Cincinnati police responded to multiple calls reporting that Stevens was waving around a

gun and threatening residents in an apartment parking lot. As soon as Stevens spotted the police,

he ran inside the building. Officers followed seconds later. One officer moved around the complex

to cover the back staircase and exit. Another heard Stevens shut a door on the third floor, which

contained four units Officers performed consent searches on three of the units, evacuating the

residents and confirming that Stevens was not present. They heard movement inside the final unit

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Case No. 21-4065, United States v. Stevens

but did not receive a response. A second-floor resident told officers that he lived directly below

that unit, that he heard its door shut immediately before police arrived, and that his female relative

lived there with her boyfriend. Thinking Stevens was armed and barricaded in the unit, the police

called SWAT to the scene.

SWAT established a secure perimeter, and an off-scene detective began preparing a search

warrant. More than an hour into the siege, Stevens asked from inside the unit whether the officers

had a warrant. An officer (falsely) responded in the affirmative, prompting Stevens to surrender

and permitting his girlfriend to exit the unit.

Soon after Stevens surrendered, a detective drove the warrant application to the home of a

judge who reviewed and signed it. The warrant affidavit contained this information: A man

threatened bystanders with a gun in an apartment parking lot; he fled to the third floor when

approached by officers; the officers surrounded the building; the officers searched the other

apartments and evacuated anyone in them; the officers unsuccessfully attempted to contact the

suspect; some neighbors stated that the man with the gun lived with his girlfriend in the unit; and

ultimately a man inside surrendered to officers.

Once the warrant was signed, the SWAT team entered the apartment to conduct a protective

sweep. The SWAT officers confirmed that no one was there, after which other officers entered

the apartment and found a gun hidden in an ottoman. Federal agents determined that the gun was

manufactured in Ohio, sold in South Carolina, and resold in Kentucky. A grand jury charged

Stevens with being a felon in possession of a firearm “in and affecting commerce.” R.3 at 1.

Stevens filed a motion to dismiss the indictment and a motion to suppress the gun. The dismissal

motion claimed that proof the gun traveled across state lines was insufficient to demonstrate it was

“in or affecting commerce”; the suppression motion claimed that the officer’s lie tainted the search

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Case No. 21-4065, United States v. Stevens

warrant. The district court rejected both motions. Stevens pleaded guilty, received a sentence of

60 months, and reserved the right to appeal the denial of both motions.

Motion to dismiss the indictment. Stevens challenges the jurisdictional basis for his

indictment. Federal law makes it unlawful for a felon to (1) “ship or transport in interstate or

foreign commerce ... any firearm or ammunition,” (2) “possess in or affecting commerce, any

firearm or ammunition,” or (3) “receive any firearm.or ammunition which has been shipped or

transported in interstate ot foreign commerce.” 18 U.S.C. § 922(g)(1). Stevens was charged with

possessing a firearm in or affecting commerce. He stipulated that his gun previously traveled

across state lines.

Scarborough v. United States teaches that the requirement that a gun have been “in

commerce or affecting commerce” is met by proof that the gun “previously traveled in interstate

commerce.” 431 U.S. 563, 566-67 (1977). No surprise, we have said the same thing. We indeed

have held that a stipulation like the one provided by Stevens—that the gun traveled in interstate

commerce—suffices “to meet § 922(g)(1)’s ‘in or affecting commerce’ requirement.” United

States v. Chesney, 86 F.3d 564, 570-72 (6th Cir. 1996); see United States v. Murphy, 107 F.3d

1199, 1211 (6th Cir. 1997); United States v. Sawyers, 409 F.3d 732, 735 (6th Cir. 2005), abrogated

on other grounds by United States v. Vanhook, 640 F.3d 706 (6th Cir. 2011); see also United States

v. Goolsby, No. 21-3087, 2022 WL 670137, at *2 (6th Cir. Mar. 7, 2022). The Sixth Circuit’s

pattern jury instructions come to a similar conclusion. Sixth Circuit Pattern Jury Instruction

12.01(1)(D).

Stevens claims that the government mixed and matched the charged offense with the wrong

interstate commerce element. One premise of his argument may be correct, but the conclusion is

not. Yes, § 922(g)(1) contains three separate offenses: transport, possession, and receipt. And

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Case No. 21-4065, United States v. Stevens

yes, the statute uses different language to describe the interstate element for the “possession”

offense (that the gun be “in or affecting commerce”) from the language it uses to describe the

“receipt” requirement (that the gun have been “shipped or transported in interstate or foreign

commerce”). 18 U.S.C. § 922(g)(1). But the government did not pair the charged offense with

the wrong interstate commerce requirement. It charged Stevens with possession of the gun, and it

charged him with possession of a gun in or affecting commerce. That is just what the statute

requires. 18 U.S.C. § 922(g)(1). And that makes United States v. Combs one significant step

removed from this case. 369 F.3d 925 (6th Cir. 2004). In that indictment under 18 U.S.C. § 924(c),

the government charged Combs with possession of a firearm “during and in relation to,” not “in

furtherance of,” a drug trafficking offense, mistakenly matching the conduct of “possess[ing]” a

gun with the standard for “us[ing]” one. Combs, 369 F.3d at 934.

Further afield is Stevens’ invocation of Mathis v. United States, 579 U.S. 500 (2016), which

he did not raise below. Mathis drew a distinction between criminal statutes that identify distinct

offenses and different means of committing the same offense. Jd. at 505-07, 517-19. But it makes

no difference here whether § 922(g) lists different means of committing the same offense or three

different offenses. Either way, the government satisfied the more difficult of the tests by showing

that the gun in fact had traveled in commerce. In Stevens’ words, even though “the Government

tracked the language of the statute” in the indictment, “it admitted in its pretrial filing it intended

to prove the jurisdictional element not through the weapon being in or affecting interstate

commerce, but that it had previously traveled in interstate commerce,” which “tracks the language

of the third offense” in the statute. Reply Br. 4-5. His apparent point is that the government

assumed the burden of meeting the interstate commerce element of the transportation or receipt

offenses, not the possession offense. But to the extent there is a difference between the

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Case No. 21-4065, United States v. Stevens

jurisdictional prerequisites of the three provisions, Chesney shows that “in or affecting commerce”

is satisfied merely by prior transportation across state lines and is the broader term. 86 F.3d at

570-72; see also Torres v. Lynch, 578 U.S. 452, 457 (2016) (explaining that “affect commerce”

and “in commerce” are “terms of art” that invoke Congress’s “authority over interstate commerce”

and “spell[] out the warrant for Congress to legislate”); United States v. Wyatt, 853 F.3d 454, 458

(8th Cir. 2017) (““‘[I]n or affecting commerce’ is a term of art that indicates a congressional intent

to invoke the full extent of its commerce power.”). We know from Wickard that an item may

affect interstate commerce without being transported across state lines. Wickard yv. Filburn, 317

U.S. 111, 118-29 (1943). Prior transportation across state lines is thus merely one “particular

method” by which a gun “ha[s] been in, or affected, commerce.” Wyatt, 853 F.3d at 457. Because

Stevens concedes the gun traveled across state lines, the government properly charged him with

possessing a firearm “in or affecting commerce.” 18 U.S.C. § 922(g)(1).

Motion to suppress. “[Nlo Warrants,” the Fourth Amendment says, “shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” In evaluating a request for a search warrant, a

court asks whether “there is a fair probability” that “evidence of a crime will be found.” J/linois

v. Gates, 462 U.S. 213, 238 (1983). However, even evidence gleaned from unconstitutional

searches will not be suppressed if it would have been discovered anyway. Utah v. Strieff, 579 US.

232, 238 (2016). This condition is satisfied where the untainted portions of a warrant affidavit

establish probable cause. See United States v. Keszthelyi, 308 F.3d 557, 573-75 (6th Cir. 2002);

United States v. Cooper, 24 F.4th 1086, 1095 (6th Cir. 2022). We review with fresh eyes the

applicability of the inevitable discovery doctrine and the existence of probable cause absent the

tainted materials in a warrant affidavit. See Keszthelyi, 308 F.3d at 574.

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Case No. 21-4065, United States v. Stevens

Even stripped of potentially tainted statements, the warrant affidavit contained ample

evidence that the gun would be found in the unit. Whether probable cause exists is “a practical,

common-sense decision.” Gates, 462 U.S. at238. When a fugitive flees into a multi-unit complex,

and officers clear all but one unit, common sense dictates that he must be in the final unit. United

States v. Scott, 520 F.2d 697, 700 (9th Cir. 1975) (affirming probable cause to search seventh and

final apartment after officers confirmed fugitives were not in the other six).

The officers established by process of elimination that the gun was likely in the final unit.

Stevens fled inside the complex with officers hot on his heels. After hearing him run up to the

third floor, officers evacuated the residents of the other three units on that floor, leaving the fourth

unit as Stevens’ last refuge. Probable cause “does not demand resolving each jot and tittle of

metaphysical doubt.” United States v. White, 990 F.3d 488, 492 (6th Cir. 2021). The remote

possibilities that Stevens disposed of his gun in the seconds between fleeing from the officers and

entering his unit, or even more outlandishly, escaped out a back stairway before the complex was

surrounded, do not undermine the “fair probability” that a search would uncover the gun. Gates,

462 US. at 238.

Pushing back, Stevens seizes upon another purportedly false statement in the affidavit:

“Neighbors [stated] that the man with the firearm lives with his girlfriend in Apt 19.” R.18-1 at 1.

But even if this statement were false and even if we overlooked Stevens’ failure to question its

veracity before the district court, it would make no difference. The officers’ confirmation that

Stevens was not in the other three units was sufficient to provide probable cause that he was in the

fourth unit with a gun.

We affirm.

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