Petition for Writ of Certiorari — Jose Paz Medina-Cantu, Petitioner v. United States

537

U.S. v. MEDINA-CANTU

Cite as 113 F.4th 537 (5th Cir. 2024)

bly, 550 U.S. at 557, 127 S.Ct. 1955 (noting

the ‘‘threshold requirement’’ of ‘‘allegations plausibly suggesting (not merely consistent with) agreement’’).

The only plausible inference from Tesla’s allegations is that despite being asked

to agree with LADA’s position, the Commission repeatedly refused to yield to

LADA’s requests. See Golden Bridge

Technology, Inc. v. Motorola, Inc., 547

F.3d 266, 272 (5th Cir. 2008). Indeed, some

of Tesla’s allegations directly show that

the Commission favored Tesla’s continued

business operation in Louisiana. Nonetheless, the majority opinion appears to consider arguments Tesla, itself, has not

made.

III

The majority opinion misses the forest

for the trees. The issue is whether a company can change the composition of a

state’s regulatory commission because it

merely disagrees with state law which the

commission is required to enforce. But

Tesla cannot use this court as an end-run

around the legislative process.7 Because

Tesla has not plausibly alleged that the

Commission has violated due process, I

would affirm the district court. Therefore,

I respectfully dissent.

v.

Jose Paz MEDINA-CANTU,

Defendant—Appellant.

No. 23-40336

United States Court of Appeals,

Fifth Circuit.

FILED August 27, 2024

Background: Following the denial of defendant’s motion to dismiss count of the

indictment charging him with possession of

a firearm and ammunition as a noncitizen

who was illegally or unlawfully in the United States, defendant pleaded guilty in the

United States District Court for the

Southern District of Texas, Nelva Gonzales Ramos, J., to that charge and to

illegal reentry into the United States. Defendant appealed.

Holdings: The Court of Appeals held that

statute prohibiting possession of firearm

and ammunition by noncitizen illegally or

unlawfully in United States does not violate Second Amendment.

Affirmed.

James C. Ho, Circuit Judge, filed opinion

concurring in the judgment.

1. Criminal Law O1139

Court of Appeals reviews a preserved

challenge to the constitutionality of a federal statute de novo.

,

7.

UNITED STATES of America,

Plaintiff—Appellee,

2. Courts O90(2)

Under the Court of Appeals’ rule of

orderliness, a three-judge panel may not

overturn another panel’s decision, absent

an intervening change in the law, such as

See, e.g., Hopkins v. Watson, 108 F.4th 371

(5th Cir. 2024) (en banc) (‘‘In other words: go

and convince the State legislatures. Do the

hard work of persuading your fellow citizens

that the law should change.’’).

APPENDIX A

1a

538

113 FEDERAL REPORTER, 4th SERIES

by a statutory amendment, or the Supreme Court, or the en banc Court of

Appeals.

3. Courts O96(3)

Under the Court of Appeals’ rule of

orderliness, for a Supreme Court decision

to change the Circuit’s law, it must be

more than merely illuminating with respect to the case before the Court of Appeals and must unequivocally overrule prior precedent.

4. Weapons O107(2)

When the Second Amendment’s plain

text covers an individual’s conduct, the

Constitution presumptively protects that

conduct. U.S. Const. Amend. 2.

5. Weapons O106(3)

The government must justify a regulation of an individual’s conduct that the

Second Amendment’s plain text covers by

demonstrating that the regulation is consistent with the Nation’s historical tradition of firearm regulation; only then may a

court conclude that an individual’s conduct

falls outside the Second Amendment’s unqualified command. U.S. Const. Amend.

2.

6. Weapons O106(3), 107(2), 184

The Second Amendment’s plain text

does not cover the conduct of noncitizens

who are unlawfully present in the United

States, and thus, statute prohibiting the

possession of a firearm and ammunition by

a noncitizen who is illegally or unlawfully

in the United States does not violate the

Second Amendment. U.S. Const. Amend.

2; 18 U.S.C.A. § 922(g)(5).

7. Weapons O106(3)

When determining whether a modern

firearm regulation is consistent with the

United States’s historical tradition of firearm regulation, courts must examine principles that underpin the regulatory tradi-

tion, but they need not identify a precise

historical analogue to deem the modern

regulation constitutional under the Second

Amendment. U.S. Const. Amend. 2.

Appeal from the United States District

Court for the Southern District of Texas,

USDC No. 2:22-CR-426-1, Nelva Gonzales

Ramos, U.S. District Judge

Eileen K. Wilson, Carmen Castillo

Mitchell, Assistant U.S. Attorneys, U.S.

Attorney’s Office, Southern District of

Texas, Houston, TX, Charles McCloud,

U.S. Department of Justice, Office of the

Solicitor General, Washington, DC, for

Plaintiff—Appellee.

Marjorie A. Meyers, Federal Public Defender, Kathryn Shephard, Federal Public

Defender’s Office, Southern District of

Texas, Houston, TX, Courtney Millian,

Federal Public Defender’s Office, District

of Columbia, Washington, DC, for Defendant—Appellant.

Before King, Ho, and Engelhardt,

Circuit Judges.

Per Curiam:

In United States v. Portillo-Munoz, 643

F.3d 437, 442 (5th Cir. 2011), this court

held that 18 U.S.C. § 922(g)(5), which prohibits an illegal alien from possessing a

firearm or ammunition, is constitutional

under the Second Amendment. In the

present case, Defendant-Appellant Jose

Paz Medina-Cantu brings another Second

Amendment challenge to § 922(g)(5), arguing that Portillo-Munoz has been abrogated by the Supreme Court’s decisions in

New York State Rifle & Pistol Ass’n v.

Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213

L.Ed.2d 387 (2022), and United States v.

Rahimi, 602 U.S. ––––, 144 S. Ct. 1889,

2a

539

U.S. v. MEDINA-CANTU

Cite as 113 F.4th 537 (5th Cir. 2024)

219 L.Ed.2d 351 (2024).1 The Government,

on the other hand, contends that PortilloMunoz remains good law.

We agree with the Government and hold

that the Supreme Court’s decisions in

Bruen and Rahimi did not unequivocally

abrogate Portillo-Munoz’s precedent. As

such, under this circuit’s rule of orderliness, we are bound to follow Portillo-Munoz. The district court’s judgment is AFFIRMED.

I.

On July 13, 2022, Defendant-Appellant

Jose Paz Medina-Cantu was charged with

possession of a firearm and ammunition

as an illegal alien in violation of 18 U.S.C.

§§ 922(g)(5)(A) and 924(a)(2), and illegal

reentry into the United States in violation

of 8 U.S.C. § 1326(a) and (b). On November 14, 2022, Medina-Cantu moved to dismiss the count of his indictment charging

him with unlawful possession, arguing

that § 922(g)(5) is unconstitutional in light

of the Supreme Court’s decision in Bruen.

The district court denied Medina-Cantu’s

motion, holding that Bruen did not abrogate this court’s decision in Portillo-Munoz, which held that ‘‘the phrase ‘the people’ in the Second Amendment of the

Constitution does not include aliens illegally in the United States.’’ See PortilloMunoz, 643 F.3d at 442; U.S. CONST.

amend. II (enshrining ‘‘the right of the

people to keep and bear Arms’’ (emphasis

added)).

On February 23, 2023, Medina-Cantu

appeared before the district court and

pleaded guilty to both counts of his indictment without a plea agreement. During

this hearing, Medina-Cantu expressly preserved his argument that § 922(g)(5) is

1.

Medina-Cantu also argues that § 922(g)(5),

as applied to him, exceeds Congress’s authority under the Commerce Clause, but he acknowledges that this argument is foreclosed.

unconstitutional under the Second Amendment. On May 31, 2023, the district court

sentenced Medina-Cantu to fifteen months

of imprisonment, followed by two years of

supervised release. This appeal followed.

II.

[1] On appeal, Medina-Cantu argues

that 18 U.S.C. § 922(g)(5) is unconstitutional in light of the Supreme Court’s decisions in Bruen and Rahimi. We review a

preserved challenge to the constitutionality

of a federal statute de novo. United States

v. Penn, 969 F.3d 450, 459 (5th Cir. 2020).

[2, 3] As noted above, this court held in

Portillo-Munoz that § 922(g)(5) is constitutional under the Second Amendment, reasoning that the phrase ‘‘the people’’ in the

Second Amendment does not include aliens

unlawfully present in the United States.

643 F.3d at 442. Under this circuit’s rule of

orderliness, a three-judge panel ‘‘may not

overturn another panel’s decision, absent

an intervening change in the law, such as

by a statutory amendment, or the Supreme Court, or our en banc court.’’ In re

Bonvillian Marine Serv., Inc., 19 F.4th

787, 792 (5th Cir. 2021) (quoting Jacobs v.

Nat’l Drug Intel. Ctr., 548 F.3d 375, 378

(5th Cir. 2008)). ‘‘In particular, for a Supreme Court decision to change our Circuit’s law, it ‘must be more than merely

illuminating with respect to the case before [the court]’ and must ‘unequivocally’

overrule prior precedent.’’ Tech. Automation Servs. Corp. v. Liberty Surplus Ins.,

673 F.3d 399, 405 (5th Cir. 2012) (alteration in original) (quoting Martin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir.

2001)). Accordingly, unless we can conclude that Bruen and/or Rahimi ‘‘unequivSee United States v. Seekins, No. 21-10556,

2022 WL 3644185, at *2 (5th Cir. Aug. 24,

2022) (summarizing precedent).

3a

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113 FEDERAL REPORTER, 4th SERIES

ocally’’ abrogated Portillo-Munoz, MedinaCantu’s Second Amendment challenge fails

due to the rule of orderliness.

In Portillo-Munoz, this court adjudicated the constitutionality of § 922(g)(5) in

light of the Supreme Court’s decision in

District of Columbia v. Heller, 554 U.S.

570, 128 S.Ct. 2783, 171 L.Ed.2d 637

(2008), which held that the Second Amendment guarantees an individual right to possess and carry firearms. See Portillo-Munoz, 643 F.3d at 439–42. We noted that

although the Supreme Court in Heller did

not purport to ‘‘clarify the entire field’’ of

the Second Amendment, id. at 440 (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783),

‘‘the Court’s language d[id] provide some

guidance as to the meaning of the term

‘the people’ as it is used in the Second

Amendment,’’ id. Namely, we highlighted

that the Court in Heller held that the

Second Amendment ‘‘surely elevates above

all other interests the right of law-abiding,

responsible citizens to use arms in defense

of hearth and home.’’ Id. (quoting Heller,

554 U.S. at 635, 128 S.Ct. 2783). We also

noted the Court’s conclusions that the

term ‘‘the people’’ is generally employed in

the Constitution to refer to ‘‘all members

of the political community,’’ and that there

is a ‘‘strong presumption that the Second

Amendment right is exercised individually

and belongs to all Americans.’’ Id. (quoting

Heller, 554 U.S. at 580–81, 128 S.Ct. 2783).

In Bruen, the Supreme Court clarified

the proper framework for adjudicating

Second Amendment challenges. The Court

noted that many lower courts, since Heller,

had developed a two-step test for assessing

Second Amendment claims. Bruen, 597

U.S. at 18, 142 S.Ct. 2111. At step one, the

Government could justify its regulation by

‘‘establish[ing] that the challenged law regulates activity falling outside the scope of

the right as originally understood.’’ Id. (alteration in original) (quoting Kanter v.

Barr, 919 F.3d 437, 441 (7th Cir. 2019),

abrogated by Bruen, 597 U.S. 1, 142 S.Ct.

2111). If the Government was able to show

that the regulated conduct falls outside of

the Second Amendment’s original scope,

the court would conclude that the regulated activity is categorically unprotected. Id.

If the historical evidence at step one was

‘‘inconclusive or suggest[ed] that the regulated activity is not categorically unprotected,’’ courts would move on to step two,

and analyze ‘‘how close the law comes to

the core of the Second Amendment right

and the severity of the law’s burden on

that right.’’ Id. (quoting Kanter, 919 F.3d

at 441). If a ‘‘core’’ Second Amendment

right (e.g., the right to self-defense in the

home) was burdened, courts applied a

strict scrutiny standard. Id. at 18–19, 142

S.Ct. 2111. Otherwise, courts would apply

intermediate scrutiny. Id. at 19, 142 S.Ct.

2111.

Drawing upon this language in Heller,

we concluded that ‘‘[i]llegal aliens are not

‘law-abiding, responsible citizens’ or ‘members of the political community,’ and aliens

who enter or remain in this country illegally and without authorization are not Americans as that word is commonly understood.’’ Id. Accordingly, we held that the

Second Amendment’s protections do not

extend to illegal aliens, and that § 922(g)(5)

is therefore constitutional under the

Amendment. Id. at 440, 442.

[4, 5] The Supreme Court in Bruen

found that step one was ‘‘broadly consistent with Heller, which demands a test

rooted in the Second Amendment’s text, as

informed by history.’’ Id. But the Court

found that step two, referred to as ‘‘meansend scrutiny,’’ ‘‘[was] inconsistent with

Heller’s historical approach.’’ Id. at 24, 142

S.Ct. 2111. Accordingly, the Court clarified

the proper standard for adjudicating Second Amendment challenges:

4a

U.S. v. MEDINA-CANTU

Cite as 113 F.4th 537 (5th Cir. 2024)

When the Second Amendment’s plain

text covers an individual’s conduct, the

Constitution presumptively protects that

conduct. The government must then justify its regulation by demonstrating that

it is consistent with the Nation’s historical tradition of firearm regulation. Only

then may a court conclude that the individual’s conduct falls outside the Second

Amendment’s ‘‘unqualified command.’’

Id. (quoting Konigsberg v. State Bar of

Cal., 366 U.S. 36, 49 n.10, 81 S.Ct. 997, 6

L.Ed.2d 105 (1961)).

To assess the constitutionality of

§ 922(g)(5) under Bruen’s standard, we

must first assess whether the Second

Amendment’s plain text covers the conduct

regulated by the statute. If the answer to

that question is yes, then the Government

must justify § 922(g)(5) by demonstrating

that it is consistent with the United

States’s historical tradition of firearm regulation.

[6] Under Bruen’s standard, our precedent dictates that Medina-Cantu’s Second

Amendment challenge fails at this first

step. We held in Portillo-Munoz that the

Second Amendment’s plain text does not

cover the conduct of aliens who are unlawfully present in the United States. Consistent with Bruen’s mandate, we reached

our decision in Portillo-Munoz by interpreting the text of the Second Amendment—i.e., the meaning of the phrase ‘‘the

people’’—and we did not engage in the

‘‘means-end scrutiny’’ practice that the Supreme Court prohibited in Bruen. Additionally, Bruen provided no clarification as

to the meaning of ‘‘the people’’ in the

2.

We note that our discussion of Bruen largely

mirrors that of our colleagues on the Eighth

Circuit in United States v. Sitladeen, 64 F.4th

978 (8th Cir. 2023), which addressed substantively the same issue as the case before this

court. The Eighth Circuit, post-Heller and preBruen, had held that ‘‘the protections of the

Second Amendment do not extend to aliens

541

Second Amendment. As Justice Alito noted

in his concurring opinion, Bruen ‘‘decide[d]

nothing about who may lawfully possess a

firearm.’’ Bruen, 597 U.S. at 72, 142 S.Ct.

2111 (Alito, J., concurring) (emphasis added); see also id. at 31–32, 142 S.Ct. 2111

(noting that it was undisputed that the

petitioners raising the Second Amendment

challenge were ‘‘ordinary, law-abiding,

adult citizens’’—‘‘part of ‘the people’ whom

the Second Amendment protects’’). Accordingly, we find that the Supreme

Court’s decision in Bruen did not abrogate

Portillo-Munoz.2

[7] Having concluded that PortilloMunoz survived Bruen, we turn next to

Rahimi. In Rahimi, the Supreme Court

clarified the analytical framework articulated in Bruen. Namely, the Court noted

that ‘‘the Second Amendment permits

more than just those regulations identical

to ones that could be found in 1791.’’ Rahimi, 144 S. Ct. at 1897–98. Therefore, as

the Court held, when determining whether

a regulation is consistent with the United

States’s historical tradition of firearm regulation, courts must examine ‘‘principles

that underpin our regulatory tradition,’’

but they need not identify a precise historical analogue to deem that regulation constitutional under the Second Amendment.

Id. at 1898.

Rahimi, like Bruen, did not unequivocally abrogate our precedent that the plain

text of the Second Amendment does not

encompass illegal aliens. Rahimi, like

Bruen, provides little clarification as to

who is protected by the Second Amendillegally present in this country.’’ See id. at

983 (quoting United States v. Flores, 663 F.3d

1022, 1023 (8th Cir. 2011)). After Bruen, a

three-judge panel of the Eighth Circuit held

that it remained bound by its pre-Bruen precedent in rejecting a Second Amendment challenge to § 922(g)(5), for essentially the same

reasons described above. See id. at 985–86.

5a

542

113 FEDERAL REPORTER, 4th SERIES

ment. It is true that the Government in

Rahimi advanced the theory that the Second Amendment protects only ‘‘law-abiding, responsible citizens.’’ Id. at 1944

(Thomas, J., dissenting). The majority in

Rahimi acknowledged this argument only

in part, explaining that the term ‘‘responsible’’—as utilized in Heller and Bruen—was

employed to ‘‘describe the class of ordinary citizens who undoubtedly enjoy the

Second Amendment right.’’ Id. at 1903.

The Supreme Court concluded that ‘‘those

decisions did not define the term and said

nothing about the status of citizens who

were not ‘responsible.’ ’’ Id. As MedinaCantu notes, this portion of Rahimi may

indicate that this court in Portillo-Munoz

overread Heller’s ‘‘law-abiding, responsible

citizens’’ language. But while Rahimi

would undoubtedly be ‘‘illuminating’’ if we

were to reconsider Portillo-Munoz, we

cannot conclude that Rahimi unequivocally

abrogated our prior holding that illegal

aliens are not ‘‘members of the political

community’’ covered by the Second

Amendment. See Tech. Automation, 673

F.3d at 405; Portillo-Munoz, 643 F.3d at

440.

We acknowledge that there are reasonable arguments as to why Portillo-Munoz

should be reconsidered post-Bruen and

Rahimi. For instance, Portillo-Munoz’s

textual interpretation of the Second

Amendment notably did not include a historical analysis, relying instead on the Supreme Court’s language in Heller. See

Portillo-Munoz, 643 F.3d at 439–42. And

Rahimi’s discussion of the term ‘‘responsible’’ provides some indication that the Supreme Court may, in future cases, reject

other arguments that the Second Amendment’s reference to ‘‘the people’’ excludes

certain individuals. But, absent clearer indication that Portillo-Munoz has been abrogated, only the Supreme Court—or this

court sitting en banc—can overturn our

precedent.

***

To summarize, this court held in Portillo-Munoz that illegal aliens are not ‘‘members of the political community’’ covered

by the plain text of the Second Amendment. 643 F.3d at 440, 442. The majority

opinions in Bruen and Rahimi did not

address this issue, nor did they unequivocally abrogate our holding in Portillo-Munoz. Accordingly, following the rule of orderliness, we are bound to follow PortilloMunoz and uphold the constitutionality of

§ 922(g)(5) under the Second Amendment.

The district court’s judgment is AFFIRMED.

James C. Ho, Circuit Judge, concurring

in the judgment:

The Second Amendment protects the

right of ‘‘the people’’ to keep and bear

arms. Our court has held that the term

‘‘the people’’ under the Second Amendment does not include illegal aliens. See

United States v. Portillo-Munoz, 643 F.3d

437, 442 (5th Cir. 2011).

The defendant here contends that Portillo-Munoz is no longer good law, in light

of recent decisions from the Supreme

Court. But there’s no basis to question our

precedent.

To begin with, no Supreme Court precedent compels the application of the Second

Amendment to illegal aliens—and certainly

not New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1, 142 S.Ct. 2111,

213 L.Ed.2d 387 (2022), or United States v.

Rahimi, 602 U.S. ––––, 144 S.Ct. 1889, 219

L.Ed.2d 351 (2024). That should be the end

of the matter. We should not extend rights

to illegal aliens any further than what the

law requires. Cf. Young Conservatives of

Texas Foundation v. Smatresk, 78 F.4th

159, 166 (5th Cir. 2023) (Ho, J., dissenting

from denial of rehearing en banc) (‘‘Our

national objectives are undercut when [we]

6a

543

GRAY v. KILLICK GROUP, L.L.C.

Cite as 113 F.4th 543 (5th Cir. 2024)

encourage illegal entry into the United

States.’’).

Moreover, it’s already well established

that illegal aliens do not have Second

Amendment rights. In United States v.

Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct.

1056, 108 L.Ed.2d 222 (1990), the Court

noted that ‘‘the people’’ is ‘‘a term of art

employed in select parts of the Constitution’’—namely, the First, Second, Fourth,

Ninth, and Tenth Amendments. Id. at 265,

110 S.Ct. 1056. The term ‘‘refers to a class

of persons who are part of a national

community or who have otherwise developed sufficient connection with this country to be considered part of that community.’’ Id. (emphasis added).

To be sure, Verdugo-Urquidez involved

the interpretation of the Fourth Amendment, not the Second. But the Court later

quoted this same passage verbatim when it

was determining the proper reading of the

Second Amendment in District of Columbia v. Heller, 554 U.S. 570, 580, 128 S.Ct.

2783, 171 L.Ed.2d 637 (2008).

Illegal aliens don’t qualify under the definition of ‘‘the people’’ set forth in Verdugo-Urquidez and Heller—not as a matter

of common sense or Court precedent.

‘‘attempts to enter’’ our country in a manner ‘‘forbidden by law.’’ So illegal aliens

are not part of ‘‘the people’’ entitled to the

protections of the Second Amendment.

Moreover, the Court has provided further reason why it reaches this conclusion.

For an illegal alien ‘‘[t]o appeal to the

Constitution is to concede that this is a

land governed by that supreme law.’’ Id.

And ‘‘the power to exclude [aliens from the

United States] has been determined to

exist’’ under our Constitution. Id. So, the

Court concluded, ‘‘those who are excluded

cannot assert the rights in general obtaining in a land to which they do not belong

as citizens or otherwise.’’ Id.

I concur in the judgment.

,

Guillermo GRAY, Plaintiff—Appellant,

v.

KILLICK GROUP, L.L.C.,

Defendant—Appellee.

No. 23-20295

As to common sense, an illegal alien

does not become ‘‘part of a national community’’ by unlawfully entering it, any

more than a thief becomes an owner of

property by stealing it. Id.

United States Court of Appeals,

Fifth Circuit.

And as to precedent, the Court has repeatedly explained that ‘‘an alien TTT does

not become one of the people to whom

these things are secured by our Constitution by an attempt to enter forbidden by

law.’’ United States ex rel. Turner v.

Williams, 194 U.S. 279, 292, 24 S.Ct. 719,

48 L.Ed. 979 (1904) (quoted in VerdugoUrquidez, 494 U.S. at 265, 110 S.Ct. 1056)

(emphasis added). But that’s, of course, the

very definition of an illegal alien—one who

Background: Worker brought suit in

state court against defendants including

his ostensible employer, asserting claims

including a claim for wages and overtime

pay under the Fair Labor Standards Act

(FLSA). Following removal to federal

court, the United States District Court for

the Southern District of Texas, Alfred H.

Bennett, J., 2023 WL 4074399, granted

employer’s motion for summary judgment

and dismissed. Worker appealed.

FILED August 28, 2024

7a