Petition for Writ of Certiorari — Jonathan Alexander Morales-Lopez, Petitioner v. United States

No._________

In the Supreme Court of the United States

JONATHAN ALEXANDER MORALES-LOPEZ,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondents.

On Petition for Writ of Certiorari

to the United States Supreme Court

for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

SCOTT KEITH WILSON

Federal Public Defender,

District of Utah

JESSICA STENGEL

Assistant Federal Public Defender,

46 W. Broadway, Suite 110

Salt Lake City, Utah 84101

(801) 524-4010

Jessica_Stengel@fd.org

i

Question Presented

Whether 18 U.S.C. § 922(g)(3), prohibiting an unlawful user from possessing

a firearm, is unconstitutionally vague.

ii

Related Proceedings

United States v. Morales-Lopez, 92 F.4th 936 (10th Cir. 2024)

United States v. Morales-Lopez, No. 2:20-cr-00027, 2022 WL 2355920 (D.

Utah June 30, 2022)

iii

Table of Contents

Question Presented .................................................................................................... i

Table of Authorities .................................................................................................. iv

Petition for Writ of Certiorai ................................................................................... 1

Opinions Below ........................................................................................................... 1

Jurisdiction ................................................................................................................. 1

Relevant Constitutional and Statutory Provisions ............................................ 1

Introduction ................................................................................................................ 1

Statement of the Case ............................................................................................... 5

A. Factual Background ......................................................................................... 5

B. Procedural History ........................................................................................... 5

Reasons for Granting the Writ ................................................................................ 8

A. Inconsistent definitions throughout the circuits illustrate the

statute’s hopeless indeterminacy. ...................................................................... 8

B. There is a pressing need to resolve the uncertainty as to

constitutionality of § 922(g)(3)........................................................................... 21

C. This case is an excellent vehicle to evaluate the constitutionality of

922(g)(3). ................................................................................................................. 24

D. The Tenth Circuit’s analysis is wrong. ....................................................... 25

Conclusion ................................................................................................................. 36

Appendix A: Opinion of the United States Court of Appeals

for the 10th District (Feb. 9, 2024) .................................................................. 2a

Appendix B: Judgment in a Criminal Case ...................................................... 19a

Appendix C: Relevant Statutory Provisions ................................................... 47a

Appendix D: Excerpts of Trial Transcript, United States

District Court for the District of Utah (May 25, 2021) ............................. 48a

iv

Table of Authorities

Federal Cases

Arave v. Creech,

507 U.S. 463 (1993) ............................................................................................... 26

Bouie v. City of Columbia,

378 U.S. 347 (1964) ................................................................................................. 2

Connally v. General Constr. Co.,

269 U.S. 385 (1926) ................................................................................................ 31

City of Chicago v. Morales,

527 U.S. 41 (1999) ........................................................................................... 30-31

Dept. of Trans. v. Ass’n of Am. RRs,

575 U.S. 43 (2015) ................................................................................................. 35

Gorin v. United States,

312 U.S. 19 (1941) ............................................................................................ 21-22

Gundy v. United States,

588 U.S. 128 (2019) ............................................................................................... 35

Int’l Harvester Co. v. Kentucky,

234 U.S. 216 (1914) ............................................................................................... 21

Kolender v. Lawson,

461 U.S. 352 (1983) ......................................................................................... 23, 32

Lamie v. U.S. Tr.,

540 U.S. 526 (2004) ............................................................................................... 25

Lanzetta v. New Jersey,

306 U.S. 451 (1939) ......................................................................................... 22, 30

Minor v. Mechanics’ Bank of Alexandria,

26 U.S. 46 (1828) ..................................................................................................... 2

Mistretta v. United States,

488 U.S. 361 (1989) ............................................................................................... 35

New York State Pistol & Rifle Ass’n v. Bruen,

597 U.S. 1 (2022) ................................................................................................... 36

v

Table of Authorities

(cont.)

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972) ............................................................................................... 30

Perrin v. United States,

444 U.S. 37 (1979) ................................................................................................. 25

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995) ............................................................................................... 33

Reno v. ACLU,

521 U.S. 844 (1997) ............................................................................................... 34

Sessions v. Dimaya,

584 U.S. 148 (2018) ................................................................... 22, 23-24, 31, 32, 33

Smith v. Goguen,

415 U.S. 566 (1974) ............................................................................................... 36

Smith v. United States,

508 U.S. 223 (1993) ............................................................................................... 26

United States v. Augustin,

376 F.3d 135 (3rd Cir. 2004) ........................................................................ 3, 9, 26

United States v. Bernadine,

73 F.3d 1078 (11th Cir. 1996) ............................................................................... 12

United States v. Boslau,

632 F.3d 422 (8th Cir. 2011) ................................................................ 11-12, 18-19

United States v. Bowens,

938 F.3d 790 (6th Cir. 2019) ............................................................... 13, 14, 15, 17

United States v. Buchard,

580 F.3d 341 (6th Cir. 2009) ................................................................................. 20

United States v. Caparotta,

676 F.3d 213 (1st Cir. 2012) ............................................................... 13, 14, 16, 17

United States v. Carnes,

22 F.4th 743 (8th Cir. 2022) ..................................................................... 12, 13, 18

United States v. Clanton,

515 Fed.Appx. 826 (11th Cir. 2013) ............................................... 12, 13, 15-16, 17

vi

Table of Authorities

(cont.)

United States v. Claybrook,

90 F.4th 248 (4th Cir. 2024) ................................................................................. 20

United States v. Cook,

970 F.3d 866 (7th Cir. 2020) ................................................................................. 21

United States v. Davis,

588 U.S. 445 (2019) ................................................................................... 23, 33, 34

United States v. Dugan,

450 Fed.Appx. 633 (9th Cir. 2011) ........................................................................ 21

United States v. Edmonds,

348 F.3d 950 (11th Cir. 2003) ............................................................................... 16

United States v. Espinoza-Roque,

26 F.4th 32 (1st Cir. 2022) .............................................................................. 21, 26

United States v. Hasson,

26 F.4th 610 (4th Cir. 2022) ........................................................................... 15, 17

United States v. Herrera,

313 F.3d 882 (5th Cir. 2002) (en banc) ................................................................. 14

United States v. Holmes,

Case No. 15-cr-129 (E.D. Wisc. 2016) .................................................................. 20

United States v. Jackson,

280 F.3d 403 (4th Cir. 2002) ................................................................................. 20

United States v. L. Cohen Grocery,

255 U.S. 81 (1921) ................................................................................................. 29

United States v. Lacher,

134 U.S. 624 (1890) ............................................................................................... 33

United States v. Lanier,

520 U.S. 259 (1997) ............................................................................................... 33

United States v. Lundy,

2021 WL 5190899 (6th Cir. Nov. 9, 2021) ............................................................ 21

United States v. Morales-Lopez,

92 F.4th 936 (10th Cir. 2024) ........................................................................... ii, 27

vii

Table of Authorities

(cont.)

United States v. Morales-Lopez, No. 2:20-cr-00027,

2022 WL 2355920 (D. Utah June 30, 2022) ....................................................... ii, 7

United States v. Nat’l Treasury Emps. Union,

513 U.S. 454 (1995) ............................................................................................... 34

United States v. Nevarez,

251 F.3d 28 (2d Cir. 2001) (per curiam) ......................................................... 12, 17

United States v. Ocegueda,

564 F.2d 1363 (9th Cir. 1977) .......................................................................... 14-15

United States v. Patterson,

431 F.3d 832 (5th Cir. 2005) ............................................................................ 13-14

United States v. Purdy,

264 F.3d 809 (9th Cir. 2001) ................................................................ 13-14, 15, 17

United States v. Ragen,

314 U.S. 513 (1942) ............................................................................................... 21

United States v. Reed,

114 F.3d 1067 (10th Cir. 1997) ............................................................................. 20

United States v. Reese,

92 U.S. 214 (1875) ................................................................ 4, 28, 29, 30, 31, 32-33

United States v. Richard,

350 Fed.Appx. 252 (10th Cir. 2009) ...................................................................... 20

United States v. Salerno,

481 U.S. 739 (1987) ............................................................................................... 28

United States v. Stevens,

559 U.S. 460 (2010) ............................................................................................... 28

United States v. Turnbull,

414 F.3d 942 (8th Cir. 2005) ................................................................................. 20

United States v. Turnbull,

349 F.3d 558 (8th Cir. 2003) ...................................................................... 20, 27-28

United States v. Yancey,

621 F.3d 681 (7th Cir. 2010) ..................................................................... 13, 15, 17

viii

Table of Authorities

(cont.)

United States v. Yepez,

456 Fed.Appx. 52 (2d Cir. 2012) ................................................................ 12-13, 18

Federal Statutes

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

21 U.S.C. § 802 ........................................................................................................... 27

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

Other

Black’s Law Dictionary (10th ed. 2014) ...................................................................... 26

Cambridge Dictionary,

https://dictionary.cambridge.org/dictionary/english/contemporaneous. .............. 16, 17

Merriam-Webster Dictionary,

https://www.merriam-webster.com/dictionary/contemporaneous. ................ 16, 17, 36

Petition for Writ of Certiorai

Petitioner Jonathan Alexander Morales-Lopez respectfully petitions for a

writ of certiorari to review the judgment of the United States Court of Appeals for

the Tenth Circuit in this case.

Opinions Below

The opinion of the court of appeals is reported at 92 F.4th 936 and reprinted

in the Appendix to the Petition (App.) 2a-18a. The opinion of the district court is

unpublished and is reprinted at App. 19a-46a.

Jurisdiction

The court of appeals issued its decision on February 9, 2024. App. 2a-18a. On

May 3, 2024, the Court extended the time to file a petition for a writ of certiorari to

June 8, 2024. See No. 23-A-985. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(a).

Relevant Constitutional and Statutory Provisions

The relevant statutory provision, Section 922(g)(3) of Title 18 of the U.S.

Code, is reproduced at App. 24a.

Introduction

An element of proving a violation of 18 U.S.C. §922(g)(3) is that the

defendant “is an unlawful user of…any controlled substance.” 1 Another element is

that this person must possess a firearm at some time relevant to being an unlawful

user. But these elements lack statutory definition and defy any coherent, ordinary

1 Section 922(g)(3) also prohibits an addict from possessing a firearm. Petitioner does not

challenge the constitutionality of this portion of the statute.

2

definition. Minor v. Mechanics’ Bank of Alexandria, 26 U.S. 46, 64 (1828) (the

ordinary meaning of language is presumed). A statute that “either forbids or

requires the doing of an act in terms so vague that men of common intelligence

must necessarily guess at its meaning and differ as to its application violates the

first essential of due process of law[.]” Bouie v. City of Columbia, 378 U.S. 347, 351

(1964).

This petition illustrates how these two elements—being an unlawful user and

possessing a firearm within some time uncertain of being an unlawful user—

consistently defy uniform interpretation and application throughout the country. In

the ordinary course, a Petitioner asks this Court to pick a side when resolving a

circuit split. To be sure, a circuit split exists. However, the circuit split is evidence of

the unconstitutional vagueness that plagues § 922(g)(3). Accordingly, Petitioner is

asking this Court to declare § 922(g)(3) unconstitutionally vague.

Petitioner was indicted in Utah for being an unlawful user of a controlled

substance who possessed a firearm and for possessing a stolen firearm. Petitioner

admitted to using controlled substances approximately five weeks prior to being

found in possession of a firearm; Petitioner denied being under the influence at the

time of his arrest. Throughout the trial, Petitioner maintained he was not an

unlawful user at the time he possessed the gun.

The jury was instructed that an “unlawful user of a controlled substance is

one who has been using a controlled substance on a regular and ongoing basis at the

3

time he was found to be in possession of a firearm.” During deliberations, the jury

submitted a question to the court:

In reference to “regular and ongoing basis” can we get clarity on the

time frame in which you would no longer be considered “regular and

ongoing basis” [sic]?

App. 38a. Ultimately, the jury returned a guilty verdict on both counts. The

district court, after the verdict and upon Petitioner’s motion, vacated the §922(g)(3)

conviction, finding the statute unconstitutionally vague on its face and as applied to

Petitioner. App. 19a-46a. The Tenth Circuit disagreed. It held that precedent

foreclosed Petitioner from bringing a facial vagueness challenge without a prior

successful as-applied challenge, and that he loses the as-applied challenge. App. 2a18a.

Had Petitioner’s case been brought in the Third Circuit, the outcome would

have been different; Petitioner would have been acquitted at trial of the § 922(g)(3)

charge as the jury would have been instructed to apply a stricter standard. United

States v. Augustin held that any qualifying drug use must be “at or about the time

of possession of the firearm, …not remote in time or an isolated occurrence.” 376

F.3d 135, 138 (3rd Cir. 2004). There, the defendant had smoked pot early in the

evening and by midnight (of the same day), a crime spree of noteworthy magnitude

was underway. Id., 136-37. Augustin held that using drugs on the same night as

possessing a gun is insufficient to convict someone of violating § 922(g)(3).

4

That a person can be found guilty in the Tenth Circuit and acquitted in the

Third Circuit is evidence of the unconstitutional indeterminacy of § 922(g)(3). But

the split is broader and more varied than the two positions staked out by the Tenth

and Third Circuits. The remaining circuits fall into one of two definitional camps,

further evidence of the ambiguity as to the statute’s reach. The lack of circuit

unanimity illustrates the unconstitutional vagueness of § 922(g)(3); the statute fails

to provide adequate notice of what conduct is prohibited and in the breach, courts

have improvidently “ma[d]e a new law, not[] enforce an old one.” United States v.

Reese, 92 U.S. 214, 221 (1875).

This Court should grant certiorari and hold that § 922(g)(3) is

unconstitutionally vague. There is no uniform definition of unlawful user among the

circuits because the statutory language is, by its nature, too vague for constitutional

application. And while all circuits agree that a temporal nexus is essential, there is

no uniform or even ascertainable standard as to the reach of said temporality. This

issue is significant; the vagueness of § 922(g)(3) leaves uncertain what is required

for conviction and has allowed courts to rewrite the statute to make it workable.

The Tenth Circuit’s position is wrong. It reinforces the uncertainty surrounding §

922(g)(3) and does so by contravening this Court’s long-standing tradition of

allowing facial challenges.

5

Statement of the Case

A. Factual Background

On January 10, 2020, Petitioner Mr. Morales-Lopez and a co-defendant stole

guns and ammunition from a Sportsman’s Warehouse store. ROA Vol. I, 252-53. 2

They used the co-defendant’s car in the robbery. Id. Petitioner was arrested upon

leaving the business, searched twice by law enforcement, and then placed in

backseat of a patrol car. ROA Vol. II, 155-56, 160. The first search produced only a

firearm; the second search produced nothing. Id. Officers failed to inspect the rear

of the vehicle before placing Petitioner inside. Id., 160. Police discovered a useramount of methamphetamine in the car after removing Petitioner from it. ROA Vol.

I, 253; ROA Vol. II, 225.

During a custodial interview, Petitioner admitted to buying meth and using it

in early December 2019. At trial, there was no evidence that Petitioner used drugs

any time in the five weeks preceding his arrest. ROA Vol. I, 254, 285-89.

B. Procedural History

1. The government charged Petitioner with possession of a stolen firearm, a

violation of 18 U.S.C. § 922(j), and possession of a firearm by an unlawful user of a

controlled substance, a violation of 18 U.S.C. § 922(g)(3). One element of § 922(g)(3)

is that the defendant is an unlawful user of any controlled substance. Another

2 “ROA Vol. I” and “ROA Vol. II” refer the record on appeal in the Tenth Circuit.

6

element is that a defendant is an unlawful user when possessing a firearm.

Petitioner continues to insist that these elements were not satisfied.

The evidence at trial showed Petitioner using drugs approximately five weeks

prior to his arrest in January 2020. ROA Vol. I, 254, 285-89; Vol. II, 208. The

government also introduced evidence that police found a user-amount of drugs in

the patrol car where Petitioner had been sitting (despite Petitioner having been

searched by law enforcement, twice over). ROA Vol. II, 153,155-56, 160, 225. There

was no evidence that Petitioner used drugs at any point during the five weeks

leading up to his arrest. And the government’s expert witness testified that the user

amount of drugs discovered in the back of the patrol car doesn’t indicate when a

person last used drugs, when the person obtained the drugs, nor could it establish

anything pertaining to or revealing about a person’s drug use history or pattern of

use. ROA, Vol. II, 231.

2. At the close of the case and before it was submitted to the jury, Petitioner

moved for a directed verdict on both counts. Petitioner also moved to dismiss the §

922(g)(3) count on the grounds that statute was unconstitutionally vague, both as

applied and on its face. Petitioner argued the statute failed to define unlawful user,

as well as failing to provide a temporal nexus between possessing a firearm and

being an unlawful user. The trial court reserved the decision and allowed the case to

go to the jury. App. 48a-59a.

7

3. The jury was instructed, in relevant part, that an “unlawful user of a

controlled substance is one who has been using a controlled substance on a regular

and ongoing basis at the time he was found to be in possession of a firearm.” App.

38a. During deliberations, the jury submitted the following question:

In reference to “regular and ongoing basis” can we get clarity on the

time frame in which you would no longer be considered “regular and

ongoing basis” [sic]?

App. 38a.

The district court and counsel for both parties “spent significant time” trying

to craft “an appropriate response to the jury’s question with no success[.]” Id. The

jury returned a guilty verdict on both counts before the court and counsel

determined how to answer the question. App. 38a-39a.

4. After the verdict was returned, Petitioner renewed his motion for judgment

of acquittal and moved to dismiss the § 922(g)(3) charge on the grounds it is

unconstitutionally vague, both facially and as applied. Dist. Ct. Dkts. 155 and 156. 3

The district court denied Petitioner’s motion for acquittal but granted his motion to

dismiss the § 922(g)(3) charge on the grounds that the statute is unconstitutionally

vague, both facially and as applied. App. 19a-46a.

3 “Dist. Ct. Dkt.” refers to the docket in United States v. Morales-Lopez (D. Utah No. 2:20-cr00027-JNP-1).

8

5. The government appealed the dismissal of the § 922(g)(3) count to the

Tenth Circuit. There, Petitioner renewed his argument that the statute was vague

both on its face and as applied to him.

The Tenth Circuit rejected Petitioner’s arguments, first reasoning that

mounting a successful as-applied challenge is an absolute prerequisite to bringing a

facial challenge, and that since Petitioner could not survive an as-applied challenge,

he was barred from raising a facial challenge. App. 2a-18a. The circuit court

suggested that because the statute only required the government to “introduce[]

sufficient evidence of a temporal nexus between the drug use and firearm

possession,” it could not be vague. App. 15a (quoting United States v. Edwards, 540

F.3d 1156, 1162 (10th Cir. 2008)). Finally, the circuit used the following data points

to support the conclusion that Petitioner’s “drug use appear[ed] to have been still

regular and ongoing” as of his arrest: Petitioner admitted using drugs five weeks

prior to his arrest, Petitioner committed a crime with someone who was an unlawful

user, and the inferences that the drugs in the back seat of the patrol car were for

personal use and likely belonged to Petitioner. App. 17a-18a.

Reasons for Granting the Writ

A. Inconsistent definitions throughout the circuits illustrate the statute’s

hopeless indeterminacy.

In the Tenth Circuit, a person is guilty of violating § 922(g)(3) if they’ve used

drugs within at least five weeks of possessing a gun. But in the Third Circuit, that

9

same person would not be guilty. These approaches generate opposite outcomes—

guilt or innocence—and myriad approaches taken by the other circuits only expand

the impossibility of knowing what conduct is actually prohibited.

1. The Third Circuit in Augustin held that the plain language of § 922(g)(3)

requires proof of unlawful drug use at or near the time of possession, and an

isolated occurrence of drug use does not transform a person into an unlawful user.

376 F.3d at 138. The statute’s “use of the present tense” clearly demonstrates

Congress’ intent to “cover unlawful drug use at or about the time of possession,” not

drug use “remote in time or an isolated occurrence.” Id. There, the defendant

smoked pot early in the evening, and then later that same night, went on a violent

crime spree. This evidence was insufficient to support a § 922(g)(3) conviction.

Courts within the Third Circuit continue to enforce this position. In United

States v. Williams, the district court gave the following instruction, which resulted

in a not-guilty verdict for the § 922(g)(3) count:

The term “unlawful user of a controlled substance” means a person

who uses a controlled substance in a manner other than as prescribed

by a licensed physician. Mr. Williams must have been actively engaged

in use of a controlled substance during the period of time he possessed

the firearm or ammunition, but the law does not require that he used

the controlled substance at the precise time he possessed the firearm

or ammunition.

Transcript of Criminal Jury Trial Day 3, at 225, No. 1:10-cr-00341 (M.D. Pa. filed

June 17, 2013), ECF No. 166.

10

2. The Tenth Circuit, by contrast, holds that a person is an unlawful user for

purposes of § 922(g)(3) when the government “introduce[s] sufficient evidence of a

temporal nexus between the drug use and firearm possession.” App. 15a. So long as

the defendant’s use of a controlled substance is “regular and ongoing” during the

“same time” as his firearm possession, the §922(g)(3) conviction stands. Id. (quoting

United States v. Bennett, 329 F.3d 769, 778 (10th Cir. 2003)).

With the concepts of regular and ongoing drug use at the same time of

firearm possession in mind, the Tenth Circuit looked at the following facts in

assessing Petitioner’s case:

- Petitioner’s admitted drug use some five weeks prior to possessing a gun

- a personal-use quantity of drugs found in the back seat of a patrol car where

Petitioner had been sitting

- Petitioner committed a crime with someone who was actively using drugs

App. 17a.

The Tenth Circuit concluded that it could not “ignore the reasonable

inferences to be drawn from the circumstantial evidence presented—inferences that

could well lead a reasonable person to conclude [Petitioner’s] drug use was regular

and ongoing at the time he possessed a … firearm.” App. 17a. The circuit reinforced

its position with this rhetorical query: “If [Petitioner’s] regular and ongoing use of

methamphetamine in December 2019 was no longer regular and ongoing at the time

of his arrest, why did he arrive to rob a gun store in a vehicle with a man he had

11

used drugs with just the previous month and that contained not only

methamphetamine and a lighter, but, sitting in the center console in plain view, a

pipe with methamphetamine residue?” Id.

3. The circuits apply different judicial glosses to § 922(g)(3) and define

“unlawful user” with varied and indeterminate phrases.

“User” is a status based upon an act. One “uses” a drug on a particular

occasion, and if a factfinder is going to describe a person as a user, it must employ

some inner sense of a relationship between an act and a status that is essentially a

feeling about language. How many uses, over what period of time, are required in

order to change one who has used drugs into a user of drugs? At what point does

that status begin or end? We simply don’t know, and the varied and indeterminate

phrases used by courts to describe this relationship fail to offer consistent or even

clarifying guidance, as they are simply vague ways to describe an inherently vague

concept.

At the end of each section, Petitioner includes summary charts of the circuits’

various approaches for ease of reference.

a. The Eighth, Eleventh and Second Circuits use both the indeterminate

phrases of “actively engage” and “ongoing drug use” to define an unlawful

user.

In United States v. Boslau, the Eighth Circuit affirmed an instruction that

defined the requisite unlawful use of a controlled substance as “not limited to the

use of drugs on a particular day, or within a matter of days or weeks before, but

12

rather that the unlawful use has occurred recently enough to indicate that the

individual is actively engaged in such conduct.” 632 F.3d 422, 429 (8th Cir. 2011);

see also United States v. Carnes, 22 F.4th 743, 748-49 (8th Cir. 2022) (rejecting a

definition that requires proof of regular drug use over an extended period).

Relying on its Guidelines jurisprudence, the Eleventh Circuit demands proof

that a “defendant’s use must be ongoing[.]” United States v. Clanton, 515 Fed.Appx.

826, 830 (11th Cir. 2013) (approving jury instruction that an unlawful user is

“actively engaged” in the use of a controlled substance); cf. United States v.

Bernadine, 73 F.3d 1078, 1082 (11th Cir. 1996) (although defendant “did at one time

smoke pot,” it was clear that he had quit, and proffers of witnesses who would say

defendant smoked pot with them “at some unspecified time in the past” were

insufficient to apply the label of unlawful user) (cleaned up).

The Second Circuit recognizes that “illicit drug use falls on a continuum:

some may use drugs with great regularity over time while others may try an illegal

substance one time only. … [W]herever a defendant may fall on this continuum,

prohibited drug use is illegal.” United States v. Nevarez, 251 F.3d 28, 30 (2d Cir.

2001) (per curiam). Notwithstanding, someone becomes an ‘unlawful user’ for

purposes of § 922(g)(3) if there is a “pattern of use” or “ongoing” drug use. United

States v. Yepez, 456 Fed.Appx. 52, 54-55 (2d Cir. 2012).

United States v. Carnes, 22 F.4th 743,

748 (8th Cir. 2022)

the unlawful use has occurred recently

enough to indicate that the individual is

actively engaged in such conduct

13

United States v. Clanton, 515 Fed.Appx. actively engaged in the use of a

826, 830 (11th Cir. 2013)

controlled substance

United States v. Yepez, 456 Fed.Appx.

52, 54 (2d Cir. 2012)

engaged in a pattern of use of

controlled substances

b. The First, Fourth, Fifth, Sixth, Seventh, Ninth, and Eleventh Circuits

deem someone to be an unlawful user if they use drugs habitually or

regularly without identifying even the outer limits of what that means.

The Seventh Circuit deems the phrase “unlawful user” synonymous with

“habitual drug abuser,” does not differentiate this from an addict, and offers no

further clarification. United States v. Yancey, 621 F.3d 681, 684 (7th Cir. 2010).

United States v. Yancey, 621 F.3d 681,

684 (7th Cir. 2010)

unlawful user is a habitual drug user

The Sixth Circuit says an “unlawful user” is someone who “took drugs with

regularity, over an extended period of time,” and then fails to define both

“regularity” and “extended period of time.” United States v. Bowens, 938 F.3d 790,

793 (6th Cir. 2019). The First and Ninth Circuits’ definitions are equally toothless:

an unlawful user is someone who “engages in (1) regular use (2) over a long period

of time[.]” United States v. Caparotta, 676 F.3d 213, 216 (1st Cir. 2012) (cleaned up

and internal quotation omitted); United States v. Purdy, 264 F.3d 809, 813 (9th Cir.

2001) (same). The Fifth Circuit ultimately reaches the same conclusion, that to be

an unlawful user requires drug use that is regular and over an extended period of

14

time. United States v. Patterson, 431 F.3d 832, 838 (5th Cir. 2005). A critical data

point in coming to this conclusion for the Fifth Circuit is the government’s

statement at “en banc oral argument: ‘We certainly wouldn’t charge one time use. It

would have to be over a period of time.’ ” United States v. Herrera, 313 F.3d 882, 885

(5th Cir. 2002) (en banc),

United States v. Caparotta, 676 F.3d

213, 216 (1st Cir. 2012)

an ‘unlawful user’ is one who engages in

(1) regular use (2) over a long period of

time

United States v. Bowens, 938 F.3d 790,

793 (6th Cir. 2019)

the government must prove that the

defendant took drugs with regularity,

over an extended period of time

United States v. Purdy, 264 F.3d 809,

813 (9th Cir. 2001)

the government must prove the

defendant took drugs with regularity,

over an extended period of time

United States v. Patterson, 431 F.3d

832, 838 (5th Cir. 2005)

the government must prove the

defendant took drugs with regularity,

over an extended period of time

Intra-circuit confusion is common. For example, the Ninth Circuit also holds

that “unlawful user” be given the “common sense meaning of the phrase,” fails to

identify the commonsense meaning, but then suggests the statute is satisfied when

the drug use is prolonged. United States v. Ocegueda, 564 F.2d 1363, 1365-66 (9th

Cir. 1977). Oceguada decides the question of whether someone is an unlawful user

by noting what would not fit a common sense meaning of the phrase: if the

defendant “used a drug that may be used legally by laymen in some circumstances,

15

or had his use of heroin been infrequent and in the distant past,” he might not be

liable under § 922(g)(3). Id., 1366. The Fourth Circuit uses the same amorphous

term as the Ninth, prolonged, also without any clarification, but adds the word

consistent. United States v. Hasson, 26 F.4th 610, 615 (4th Cir. 2022) (a person is an

unlawful user if their drug use is “consistent, prolonged[.]”). What it takes to be an

unlawful user is still unclear.

United States v. Ocegueda, 564 F.2d

1363, 1365-66 (9th Cir. 1977)

a defendant’s use must be prolonged

United States v. Hasson, 26 F.4th 610,

615 (4th Cir. 2022)

a defendant’s use must be consistent,

prolonged

4. The circuits agree that a temporal nexus is essential, but there is no

consensus on what that nexus is; instead, the circuits use various words with

undefined boundaries to establish the requisite nexus.

a. Using different linguistic cues, the First, Sixth, Seventh, Ninth, and

Eleventh Circuits all require the unlawful user to possess the firearm

contemporaneously with being an unlawful user.

The Sixth Circuit phrases the qualifying drug use as being

“contemporaneous[] with his…possession of a firearm,” Bowens, 938 F.3d at 793

(quoting United States v. Burchard, 580 F.3d 341, 350 (6th Cir. 2009)), as do the

Seventh and Ninth Circuits. Yancey, 621 F.3d at 687, Purdy, 264 F.3d at 812. The

Eleventh Circuit also uses contemporaneous for the temporal nexus and has found

error when district courts attempt to clarify contemporaneous. Clanton, 515

Fed.Appx. at 830 (error for district court to add that “[s]uch use is not limited to the

16

use of drugs on a particular day or within a matter of days or weeks before”); United

States v. Edmonds, 348 F.3d 950, 953 (11th Cir. 2003) (must be unlawful user

“during the same time period as the firearm possession”).

These positions fail to identify limits to the temporal nexus implicit in the

statute. The ordinary meaning of the word ‘contemporaneous’ is “existing, occurring,

or originating during the same time.” https://www.merriamwebster.com/dictionary/contemporaneous. The example provided by the Cambridge

Dictionary exposes the vagueness of having ‘contemporaneous’ define the temporal

nexus: “The two events were more or less contemporaneous, with only months

between them.”

https://dictionary.cambridge.org/dictionary/english/contemporaneous. If

contemporaneous is measured in months, where does the relevant time-period end?

How many months is enough months for conviction under the statute? It is

impossible to know when the gun possession becomes legal (or illegal) when the

combination of being an unlawful user and possession within months of each other

might be prohibited.

The First Circuit takes a slightly broader approach, defining the requisite

temporal nexus as drug use “proximate to or contemporaneous with the possession

of the firearm.” Caparotta, 676 F.3d at 216. Proximate is “immediately preceding or

following (as in a chain of events, causes, or effects),” https://www.merriamwebster.com/dictionary/proximate, or “closest in time, place, relationship, etc. to

17

something.” https://dictionary.cambridge.org/dictionary/english/proximate. Then the

question is, in the First Circuit, does the unlawful user status immediately precede

or follow possessing a gun, or be within some number of months of said possession?

Again, that is no standard at all.

United States v. Caparotta, 676 F.3d

213, 216 (1st Cir. 2012)

proximate to or contemporaneous with

the possession of the firearm

United States v. Bowens, 938 F.3d 790,

793 (6th Cir. 2019)

contemporaneously with his purchase

or possession of a firearm

United States v. Purdy, 264 F.3d 809,

812 (9th Cir. 2001)

contemporaneous with his firearms

purchases

United States v. Nevarez, 251 F.3d 28,

30 (2d Cir. 2001) (per curiam)

contemporaneous with the commission

of the offense

United States v. Yancey, 621 F.3d 681,

687 (7th Cir. 2010) (per curiam)

contemporaneous with the gun

possession

United States v. Clanton, 515 Fed.

Appx. 826, 830 (11th Cir. 2013)

contemporaneous with the gun

possession

b. The Second and Fourth Circuits require that the gun possession be close in

time to someone being an unlawful user.

To sustain a § 922(g)(3) conviction in the Fourth Circuit, the government

must prove the qualifying drug use was “close in time” to the defendant’s possession

of the gun. Hasson, 26 F.4th at 615-16. Close only has meaning when compared to

something else—and in this instance, the comparator is unknown. Close is relative

and lacks knowable boundaries.

18

The Second Circuit fares no better. The requisite temporal nexus required in

the Second Circuit is that a defendant was engaged in the requisite pattern of drug

use “that reasonably covers the time of the events charged[.]” Yepez, 456 Fed.Appx.

at 54. The term ‘reasonably’ is an adverb that modifies the verb ‘cover,’ but to no

end. Reasonably is a judgment, one without boundaries, and just as with the word

‘close,’ it has meaning only by referencing something else. Terms that take shape by

reference to an unknown cannot be the basis for imposing criminal liability.

United States v. Yepez, 456 Fed Appx

52, 54 (2d Cir. 2012)

reasonably covers the time of the events

charged

United States v. Hassan, 26 F.4th 610,

615-16 (4th Cir. 2022)

close in time to his firearm possession

c. The Eighth Circuit acknowledges the need for a temporal nexus and

refuses to attempt to define it.

The Eighth Circuit agrees with other circuits that a temporal nexus is

required to sustain a § 922(g)(3) conviction, but fails to do more than say possession

must be at the same time as active drug use. Carnes, 22 F.4th at 748. Rejecting the

requirement that the drug use and gun possession be simultaneous and refusing to

say possession must be contemporaneous with being an unlawful user, the Eighth

Circuit says so long as a defendant was “actively engaged in use of a controlled

substance during the time he possessed the firearm,” the temporal nexus is

satisfied. Id. See also Boslau, 632 F.3d at 429 (“such use [of a controlled substance]

is not limited to the use of drugs on a particular day, or within a matter of days or

19

weeks before, but rather that the unlawful use has occurred recently enough to

indicate that the individual is actively engaged in such conduct.”).

5. The confusion about § 922(g)(3) is entrenched.

Depending on the circuit, the phrase “unlawful user” means anything ranging

from someone who once sampled an illegal drug many years ago to someone who

has been daily using such drugs, and possibly for many years. The dictionary

definitions of “user” provide no help—the term is indeterminate by its nature and

defined in the dictionary only in a circular manner: a user is one who uses. When

courts try to narrow the scope of what the word “user” means, they cannot merely

choose from among available definitions, or even a commonsense understanding.

Consequently, the courts have added modifying words that are hardly less vague

than the phrase they seek to clarify.

The imposition of a judicially-created temporal nexus fails to save the statute

from being unconstitutionally vague. Just as with the phrase “unlawful user,” there

is no prevailing understanding of the necessary timing between possessing the gun

and being an unlawful user. Courts’ efforts to create a sufficiently narrow definition

for the temporal nexus have resulted in vague phrases with undefined boundaries.

The additive effect of the vagueness of both ‘unlawful user’ and indeterminate

temporal nexus leaves little room to doubt that §922(g)(3) is unconstitutionally

vague.

20

Courts across the country have expressed concern about the validity of §

922(g)(3). See United States v. Reed, 114 F.3d 1067, 1071 (10th Cir. 1997)

(“application of the statute … still less than ideally clear, because of the undefined

term “user” and … that the term must connote some temporal element.); United

States v. Claybrook, 90 F.4th 248, 253 (4th Cir. 2024) (“Admittedly, the legal

contours of “unlawful user” of a controlled substance are not well defined within the

statute.”); United States v. Turnbull, 349 F.3d 558, 561 (8th Cir. 2003), vacated, 543

U.S. 1099 (2005), reinstated, 414 F.3d 942 (8th Cir. 2005) (per curiam) (§922(g)(3)

risks “being unconstitutionally vague without a judicially-created temporal nexus

between the gun possession and regular drug use.”); United States v. Jackson, 280

F.3d 403, 406 (4th Cir. 2002) (“the exact reach of the statute is not easy to define”);

United States v. Buchard, 580 F.3d 341, 347-48 (6th Cir. 2009) (citing Turnbull, 349

F.3d at 561, and other circuits for proposition that statute would be

unconstitutionally vague without judicially-created temporal nexus); United States

v. Richard, 350 Fed.Appx. 252, 262-63 (10th Cir. 2009) (recognizing other circuits’

statements that § 922(g)(3) “runs the risk of being unconstitutionally vague without

a judicially created temporal nexus between the gun possession and regular use”);

United States v. Holmes, No. 15-cr-129 (E.D. Wisc. 2016), ECF No. 35, slip op. at 5

(“the term “unlawful user” may lack the concreteness of some of the other prohibited

person definitions in § 922(g)”). But the same courts continue to reject vagueness

challenges.

21

There is no reason to believe that any circuit will reconsider its interpretation

of § 922(g)(3). Indeed, several circuits have reaffirmed their position many times

over. United States v. Cook, 970 F.3d 866, 874 (7th Cir. 2020) (relying on Yancey,

621 F.3d 681, for definition of unlawful user and judicially-created temporal nexus);

United States v. Lundy, 2021 WL 5190899 (6th Cir. Nov. 9, 2021) (unpubl) (relying

on Buchard that unlawful user used drugs with regularity over an extended period

of time, and contemporaneous with firearm possession); United States v. Dugan, 450

Fed.Appx. 633, 637 (9th Cir. 2011) (relying on Purdy for definition of unlawful user

and judicially-created temporal nexus); United States v. Espinoza-Roque, 26 F.4th

32, 35 (1st Cir. 2022) (relying on Caparotta for definition of unlawful user and

judicially-created temporal nexus).

Only this Court can resolve this enduring uncertainty as to the validity of §

922(g)(3).

B. There is a pressing need to resolve the uncertainty as to

constitutionality of § 922(g)(3).

1. Section 922(g)(3) “offers no standard of conduct that is possible to know.”

Int’l Harvester Co. v. Kentucky, 234 U.S. 216, 221 (1914); United States v. Ragen,

314 U.S. 513, 522 (1942) (a statute is “violative of the defendant’s constitutional

rights” when the standard by which a defendant’s guilt is assessed is determined by

the trier of fact and will be void); cf. Gorin v. United States, 312 U.S. 19, 26 (1941)

(recognizing history of invalidating laws that that force a person, “at his peril, to

22

speculate as to whether certain actions violate[] the statute”) and at 27 n.12

(collecting Supreme Court cases of criminal statutes found unconstitutionally

vague). It leaves unknown both what the qualifying use of a controlled substances is

and the requisite temporal nexus for possessing a weapon vis-a-vis the drug use.

Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939) (“No one may be required at peril

of life, liberty or property to speculate as to the meaning of penal statutes. All are

entitled to be informed as to what the State commands or forbids.”) and n.2

(collecting cases saying the same). The persistent uncertainty about what conduct is

actually prohibited by § 922(g)(3) is manifestly unjust.

2. The statute contains two variables. The first, unlawful user, eludes both

statutory and common-sense definitions. There is a marked absence of consistency

among the circuits to provide sufficient notice of what conduct is prohibited. The

second is the judicially-created temporal nexus of possessing a gun in relation to the

unlawful use. While Congress used the present tense vis-à-vis unlawful user, it was

wholly silent as to when this unlawful user could or could not possess a gun. The

interaction of these two unknowns produces more uncertainty than is tolerable

under “the guarantee of due process.” Sessions v. Dimaya, 584 U.S. 148, 159 and n.3

(2018).

3. The circuits’ unwillingness to entertain facial challenges to § 922(g)(3) also

has significant implications in other contexts. The ability to bring a facial vagueness

challenge has a substantial impact on preserving separation of powers and ensuring

23

sufficient notice of what is prohibited conduct. Allowing vagueness challenges

protects both of these foundational principles: prior notice of prohibited conduct and

separation of powers.

Statutory clarity is a bedrock requirement of criminal jurisprudence.

Vagueness is the reverse, a problem regularly corrected by this Court’s long

tradition of invalidating laws that fail to provide notice of prohibited conduct. See

Kolender v. Lawson, 461 U.S. 352, 357 (1983) (collecting cases that hold “void-forvagueness doctrine requires that a penal statute define the criminal offense with

sufficient definiteness that ordinary people can understand what conduct is

prohibited.”).

“Vague laws also undermine the Constitution’s separation of powers and the

democratic self-governance it aims to protect.” United States v. Davis, 588 U.S. 445,

451 (2019). While only elected representatives can criminalize conduct, “[v]ague

statutes threaten to hand responsibility for defining crimes to relatively

unaccountable” officials in the judicial and executive branches, which “erod[es] the

people’s ability to oversee the creation of the laws they are expected to abide.” Id.

Allowing vague statutes to persist risks moving the legislative process from “an

open and public debate” to the “comparatively obscure confines of cases and

controversies.” Dimaya, 584 U.S. at 182 (Gorsuch, J., concurring). “For just these

reasons, Hamilton warned, while “liberty can have nothing to fear from the

24

judiciary alone,” it has “every thing to fear from” the union of the judicial and

legislative powers.” ” Id. (quoting The Federalist No. 78, at 466).

C. This case is an excellent vehicle to evaluate the constitutionality of

922(g)(3).

This case presents a clean vehicle to resolve the question presented.

Petitioner preserved the vagueness issue by first challenging the statute’s

validity at the district court. Dist. Ct. Dkt. 156. The district court’s ruling engaged

this Court’s vagueness jurisprudence, and determined § 922(g)(3) to be

unconstitutionally vague, as it both failed to provide notice and invited “courts,

rather than the legislature, to decide what constitutes a crime.” App. 32a-33a. The

district court also found the statute vague as applied; the trial court was unable to

“identify a core of conduct” clearly covered by § 922(g)(3), and in any event,

possessing a weapon five weeks after admitting to using drugs was not clearly

prohibited conduct. App. 21a-42a.

The case arises on direct appeal. No jurisdictional problems exist, no

preservation problems exist, and facts are similarly undisputed. The record is

limited and the question presented is outcome-determinative.

This case also has the benefit of involving both factors contributing to the

vagueness of § 922(g)(3): is someone an unlawful user because s/he admitted to drug

use once in the past five weeks, and even if so, does the judicially-created temporal

nexus reach far enough to include possession of the firearm?

25

D. The Tenth Circuit’s analysis is wrong.

The Tenth Circuit’s vagueness analysis is wrong on two counts. First, it uses

judicially-created definitions to limit the reach of the statute in determining if

Petitioner’s conduct was prohibited. See App. 15a. Second, the Tenth Circuit refuses

to engage with the ultimate issue—that § 922(g)(3) is unconstitutionally vague—

and the offered explanation of why it cannot address the facial challenge runs

counter to historical principles of statutory construction, is unduly rigid, and

transgresses the separation between the judiciary and the legislature.

1. The Tenth Circuit rejects the ordinary tools of statutory construction,

ignoring the obvious facts that the plain text of § 922(g)(3) defines unlawful user

only with reference to what they are not (addicts) and lacks any indicia of a

temporal nexus.

“The ordinary meaning rule is the most fundamental semantic rule of

interpretation.” Antonin Scalia and Bryan Garner, Reading Law: The Interpretation

of Legal Texts, 69 (2012). See also Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004)

(“when the statute’s language is plain, the sole function of the courts—at least

where the disposition required by the text is not absurd—is to enforce it according

to its terms”). “[W]ords will be interpreted as taking their ordinary, contemporary,

common meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979). “We assume that

legislators use words in their ordinary, everyday senses[.]” Arave v. Creech, 507 U.S.

463, 472 (1993). See also Smith v. United States, 508 U.S. 223, 228 (1993) (“When a

26

word is not defined by statute, we normally construe it in accord with its ordinary or

natural meaning”).

Consulting a dictionary for a definition of user does not help—the ordinary

definition of “user” fails to provide any limits on the reach of § 922(g)(3). Indeed, a

user is “one that uses.” https://www.merriam-webster.com/dictionary/user. Black’s

Law Dictionary supplies a similarly expansive definition: a user is “[s]omeone who

uses a thing.” Black’s Law Dictionary (10th ed. 2014). Based on those definitions, an

unlawful user could be anyone who uses, at any point in their life, any of the myriad

substances on the federal schedule. Even if “user” implicitly refers to present use,

see e.g., Augustin, 376 F.3d at 138, Espinoza-Roque, 26 F.4th at 35, what it takes to

become a member of the prohibited class remains unclear: How does one define use

in the present tense? Is a single instance of drug use sufficient? Two uses? Fifty? Is

anyone who has used in the past and may use again a present user? If not, when

does “use” begin and end? The statute offers no clues.

Context can also provide guidance when attempting to interpret a statute.

Per the statute, an unlawful user is someone different than an addict. Congress

defines addict as “any individual who habitually uses any narcotic drug so as to

endanger the public morals, health, safety, or welfare, or who is so far addicted to

the use of narcotic drugs as to have lost the power of self-control with reference to

his addiction.” 21 U.S.C. § 802(1). Further confusion arises as Congress limits the

reach of ‘addict’ to only those “so far addicted” as to have lost self-control. Implicit in

27

this definition is the notion that addiction covers a range of behavior, but Congress

chose only to criminalize those addicts who have lost self-control, or those whose

conduct threatens public morality or safety. But what type of addiction doesn’t

threaten public safety? And public morality is an evolving concept that lacks limits

until after the fact of transgression—and then will likely change over time. Since an

unlawful user is someone who is not an addict, and the word ‘addict’ is not without

definition problems itself, attempting to gauge what is and isn’t an ‘unlawful user’

by a constantly shifting standard is a fool’s errand.

In addition to the vagaries about how often, regularly, and/or intensely

someone must use drugs to belong to the class of “unlawful users,” there is

uncertainty as to how the status of being an unlawful user correlates with the

timing of possessing a gun. Courts have inconsistently described the requisite

temporal nexus between being an unlawful user and possessing a firearm,

oftentimes working backwards from the premise that there must be some temporal

nexus but never defining that nexus. This indeterminacy stems from courts trying

to save what is likely an unconstitutional statute. See, e.g., App. 15a (explaining

that a judicially-created temporal nexus remedies any potential vagueness

problem); Turnbull, 349 F.3d at 561 (“[t]he term ‘unlawful user’ is not otherwise

defined in the statute, but courts generally agree the law runs the risk of being

unconstitutionally vague without a judicially-created temporal nexus between the

gun possession and regular drug use.”). Those efforts are for naught. Beyond

28

identifying the necessity of some chronological connection between being an

unlawful user and possessing the firearm, the range of conduct prohibited is still

unknown—and to be certain, varies between the circuits.

Attempting to weave the pieces of § 922(g)(3) together, the statute’s

inadequacies and variable meanings are obvious. The term ‘unlawful user’ defies

definition. The temporal nexus varies from circuit to circuit, and is often defined

after the fact, by an appellate court reviewing evidence in a light most favorable to

the verdict. There is no notice, just post-hoc affirmation of guilt. It is clear that §

922(g)(3) fails to “express its will in language that need not deceive the common

mind.” Reese, 92 U.S. at 220. In other words, § 922(g)(3) is unconstitutionally vague.

2. The Tenth Circuit’s myopic approach to statutory challenges ignores this

Court’s rich tradition of allowing facial vagueness challenges and results in a

bright-line rule foreclosing facial challenges altogether.

The Tenth Circuit incorrectly holds that facial challenges are categorically

barred unless either in the context of the First Amendment or the petitioner

succeeds on an as-applied challenge. This Court has long permitted facial

challenges without first requiring litigants to demonstrate that “no set of

circumstances exists under which [the challenged statute] would be valid,” United

States v. Salerno, 481 U.S. 739, 745 (1987), or that the “statute lacks any “plainly

legitimate sweep.” ” United States v. Stevens, 559 U.S. 460, 472 (2010) (quoting

Wash. v. Glucksberg, 521 U.S. 702, 740 n.7 (1997) (Stevens, J., concurring in

judgment)).

29

In Reese, this Court considered whether to permit enforcement of a federal

law that had both constitutional and unconstitutional applications: “We are… called

upon to decide whether a penal statute enacted by Congress … which is in general

language broad enough to cover wrongful acts without as well as within the

constitutional jurisdiction, can be limited by judicial construction so as to make it

operate only on that which Congress may rightfully prohibit and punish.” 92 U.S. at

221. Reese does not end the analysis with whether there are constitutional

applications of the statute. The question instead is “whether we can introduce

words of limitation into a penal statute so as to make it specific, when, as expressed,

it is general only.” Id.

Citing Reese, this Court entertained a facial challenge to a criminal statute

prohibiting a person from “willfully…[] mak[ing] any unjust or unreasonable rate or

charge in handling or dealing in or with any necessaries” in United States v. L.

Cohen Grocery, 255 U.S. 81, 86 (1921). Cohen Grocery declined to adopt a piecemeal, as-applied approach, and instead resolved the matter by determining if the

statutory denunciation of unjust and unreasonable rates “constituted a fixing by

Congress of an ascertainable standard of guilt … adequate to inform persons

accused … of the nature and cause of the accusation against them.” Id., 89. Because

the statute employed only general terms, “forbid[ding] no specific or definite act[,]”

it impermissibly authorized a sweeping investigation “the scope of which no one can

30

foresee and the result of which no one can foreshadow or adequately guard against.”

Id.

Lanzetta relied on Reese to hold that the “details of the offense” that are

central to an as-applied challenge can do nothing to save a vague statute from a

facial challenge:

If on its face the challenged provision is repugnant to the due process

clause, specification of details of the offense intended to be charged

would not serve to validate it. It is the statute, not the accusation

under it, that prescribes the rule to govern conduct and warns against

transgression.

306 U.S. at 453 (citations omitted). Lanzetta reaffirmed that

the terms of a penal statute creating a new offense must be sufficiently

explicit to inform those who are subject to it what conduct on their part

will render them liable to its penalties is a well-recognized

requirement, consonant alike with ordinary notions of fair play and the

settled rules of law; and a statute which either forbids or requires the

doing of an act in terms so vague that men of common intelligence

must necessarily guess at its meaning and differ as to its application

violates the first essential of due process of law.

Id. (quoting Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)). See also

Papachristou v. City of Jacksonville, 405 U.S. 156, 171 (1972) (considering the

breadth of the law and concluding that it “cannot be squared with our constitutional

standards and is plainly unconstitutional.”).

In City of Chicago v. Morales, the Court reaffirmed its position that “[w]hen

vagueness permeates the text of such a law, it is subject to facial attack.” 527 U.S.

41, 55 (1999). Rebuffing the dissent’s attack on facial challenges generally, the

31

Court notes—in a footnote—that dicta from United States v. Salerno “has never

been the decisive factor in any decision of this Court, including Salerno itself[.]” Id.,

55 n.22.

3. The Tenth Circuit’s rule prohibiting facial challenges to vague statutes is

incorrect and serves to undermine crucial constitutional principles.

Facial vagueness challenges further three critical constitutional goals. First,

the vagueness doctrine bars enforcement of “a statute which either forbids or

requires the doing of an act in terms so vague that men of common intelligence

must necessarily guess as to its meaning and differ as to its application.” Connally

v. General Constr. Co., 269 U.S. 385, 391 (1926). See also City of Chicago, 527 U.S.

at 56 (“It is established that a law fails to meet the requirements of the Due Process

Clause if it is so vague and standardless that it leaves the public uncertain as to the

conduct it prohibits.”); Reese, 92 U.S. at 220 (“If the legislature undertakes to define

by statute a new offence, and provide for its punishment, it should express its will

in language that need not deceive the common mind. Every man should be able to

know with certainty when he is committing a crime.”); Dimaya, 584 U.S. at 176-180

(Gorsuch. J., concurring) (recounting history of due process requiring notice, and

noting that “John Rutledge, our second Chief Justice, explained that Coke’s

teachings were carefully studied and widely adopted by the framers, becoming

‘almost the foundations of our law.’ ”) (quoting Klopfer v. North Carolina, 386 U.S.

213, 225 (1967)).

32

Second, vagueness challenges allow courts to consider whether a statute

allows for arbitrary or discriminatory enforcement. The lack of “minimal guidelines

to govern law enforcement” may be more important to due process than notice.

Kolender, 461 U.S. at 358 (quoting Smith v. Goguen, 415 U.S. 566, 574 (1974)).

Vague statues “permit a standardless sweep [that] allows policemen, prosecutors,

and juries to pursue their personal predilections.” Id., (quoting Goguen, 415 U.S. at

575)).

Third and perhaps most important, vagueness jurisprudence protects the

essential separation of powers among the three branches of government. “[T]he

more important aspect of vagueness doctrine is not actual notice, but … the

requirement that a legislature establish minimal guidelines to govern law

enforcement and keep the separate branches within their proper spheres.” Dimaya,

584 U.S. at 183 (Gorsuch, J., concurring (emphasis in original). Reese recognized

that

[i]t would certainly be dangerous if the legislature could set a net large

enough to catch all possible offenders, and leave it to the courts to step

inside and say who could be rightfully detained and who should be set

at large. This would, to some extent, substitute the judicial for the

legislative department of the government.

92 U.S. at 221. For a court to limit such a statute so as to be subject to

constitutional metes and bounds “would be [to] make a new law, not to enforce an

old one.” Id.

33

Building upon Reese, some fifteen years later this Court described the already

long-standing doctrine of strict construction as being based, in part “on the sound

principle that it is for the legislature, not the court, to define a crime and ordain its

punishment.” United States v. Lacher, 134 U.S. 624, 629 (1890). This basic principle

remains undiminished in strength and importance today. See United States v.

Lanier, 520 U.S. 259, 265 n.5 (1997) (“The fair warning requirement also reflects

the deference due to the legislature, which possesses the power to define crimes and

their punishment.”); Davis, 588 U.S. at 448 (vague laws “hand off the legislature’s

responsibility for defining criminal behavior to unelected prosecutors and judges.”).

“[A]t some point, a statute could be so devoid of content that a court tasked with

interpreting it would simply be making up a law—that is, exercising legislative

power.” Dimaya, 584 U.S. at 218 (Thomas, J., dissenting). Robert Frost and Justice

Scalia agree: “Good fences make good neighbors.” Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211, 240 (1995).

The Tenth Circuit’s misguided rule prohibiting facial challenges undercuts

these basic principles that motivate every vagueness challenge in three ways.

First, imposing a requirement that a defendant first identify some core at the

center of a vague statute, and then compare his conduct to that core eliminates a

court’s ability to address any of the three principles motivating vagueness

jurisprudence. Whether or not particular conduct falls within the core of a

prohibition says nothing about whether there is adequate notice of the prohibition’s

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sweep, of whether it permits arbitrary enforcement, or whether it allows judges to

define the crime. Indeed, a judicial definition of a supposed core of what Congress

might have meant (although didn’t say) demonstrates the separation of powers

problem. If a defendant’s understanding that his conduct would be prohibited is

only based on a judicial interpretation of a vague statute, as is true with regard to

922(g)(3), the problem of fair notice is inextricably entwined with the separation of

powers problem.

Second, a vagueness challenge to a statute requires consideration of its

validity as applied to anyone. If a statute is unconstitutionally vague, it is a nullity:

“a vague law is no law at all.” Davis, 588 U.S. at 447. As such, it makes no sense to

first require a defendant to make an as-applied challenge, since under the

argument, the statute is a nullity which cannot be constitutionally applied to

anyone, regardless of the facts of a defendant’s particular case.

Third, the Tenth Circuit’s approach encourages courts to rewrite criminal

statutes, which raises serious separation of powers concerns. Per the circuit, so long

as a court can manufacture limits that fit the particularities of a given case, thus

eliminating an as-applied challenge, the statute is not unconstitutionally vague.

This contradicts the maxim that courts “will not rewrite a … law to conform it to

constitutional requirements.” Reno v. ACLU, 521 U.S. 844, 884-85 (1997). To do so

would be a “serious invasion of the legislative domain.” United States v. Nat’l

Treasury Emps. Union, 513 U.S. 454, 479 n.26 (1995).

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“[T]he central judgment of the Framers of the Constitution [was] that, within

our political scheme, the separation of governmental powers into three coordinate

Branches is essential to the preservation of liberty.” Mistretta v. United States, 488

U.S. 361, 380 (1989). “ “[T]he greatest security,” wrote Madison, “against a gradual

concentration of the several powers in the same department, consists in giving to

those who administer each department, the necessary constitutional means, and

personal motives, to resist encroachments of the others.” ” Id., 381 (quoting The

Federalist No. 51, p. 349 (J. Cooke ed. 1961)). See also Dept. of Trans. v. Ass’n of

Am. RRs, 575 U.S. 43, 74-77 (2015) (Thomas, J, concurring) (noting the “Framer’s

dedication to the separation of powers has been well-documented,” and the Court

has “held that the Constitution categorically forbids Congress to delegate its

legislative power to any other body[.]”); Gundy v. United States, 588 U.S. 128, 153

(2019) (Gorsuch, J., dissenting) (the Framers understood the legislative power to be

“the power to prescribe general rules for the government of society” and “it would

frustrate the system of government ordained by the Constitution if Congress could

merely announce vague aspirations and then assign others the responsibility of

adopting legislation to realize its goals.”) (internal quotations and citations

omitted).

A hard-line rule against facial vagueness challenges is grossly unfair. It

eliminates a vital check on separation of powers at the same time eviscerating one

of the rudimentary tenets of due process, notice of prohibited conduct. Lower courts

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should not be allowed to fill in critical blanks in criminal laws—the government

should not be allowed to exploit vague laws to deprive individuals of that which the

Founders hold most dear: liberty.

4. In addition, the prohibition in § 922(g)(3) directly affects an explicit

fundamental right that this Court recognized in New York State Pistol & Rifle Ass’n

v. Bruen, 597 U.S. 1 (2022). The outline of who can and cannot exercise this right

needs special clarity. Cf. Smith v. Goguen, 415 U.S. 566, 573 (1974) (when a

“statute’s literal scope, unaided by a narrowing state court interpretation, is capable

of reaching expression sheltered by the First Amendment, the doctrine demands a

greater degree of specificity than in other contexts”) and n.10.

Conclusion

For the foregoing reasons, this Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

SCOTT KEITH WILSON

Federal Public Defender,

District of Utah

June 10, 2024

JESSICA STENGEL

Assistant Federal Public Defender,

46 W. Broadway, Suite 110

Salt Lake City, Utah 84101

(801) 524-4010

Jessica_Stengel@fd.org