Opinion
CR23-2005-LTS-MAR
07-19-2023
UNITED STATES OF AMERICA, Plaintiff, v. JOSHUA MICHAEL FAUST, Defendant.
ORDER
Leonard T. Strand, Chief Judge
This matter is before me on a Report and Recommendation (R&R) in which the Honorable Mark A. Roberts, United States Magistrate Judge, recommends that I deny defendant Joshua Michael Faust's motion (Doc. 21) to dismiss the indictment under Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S.Ct. 2111 (2022). Doc. 33. Neither party has filed objections.
I. BACKGROUND
On March 22, 2023, the grand jury returned an indictment (Doc. 2) charging Faust with possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On May 8, 2023, Faust filed a motion (Doc. 21) to dismiss the indictment based on Bruen. The Government filed a resistance (Doc. 22) on May 15, 2023. The next day, Faust filed his notice (Doc. 23) of intent to plead guilty. Judge Roberts held a plea hearing on May 24, 2023, during which Faust entered his plea of guilty to the indictment pursuant to a plea agreement. Doc. 26. I accepted the plea on June 9, 2023. Judge Roberts filed his R&R on Faust's motion to dismiss on June 30, 2023, recommending that I deny the motion. Neither party filed objections and the time for doing so has passed.
The plea agreement provides that Faust's plea is conditional such that he may withdraw his plea in the event the court grants his motion to dismiss.
II. APPLICABLE STANDARDS
A district judge must review a magistrate judge's R&R under the following standards:
Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b). Thus, when a party objects to any portion of an R&R, the district judge must undertake a de novo review of that portion.
Any portions of an R&R to which no objections have been made must be reviewed under at least a “clearly erroneous” standard. See, e.g., Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that when no objections are filed “[the district court judge] would only have to review the findings of the magistrate judge for clear error”). As the Supreme Court has explained, “[a] finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under a more-exacting standard even if no objections are filed:
Any party that desires plenary consideration by the Article III judge of any issue need only ask. Moreover, while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.Thomas v. Arn, 474 U.S. 140, 150 (1985).
III. DISCUSSION
Because none of the parties objected to the R&R, I have reviewed it for clear error. I agree with Judge Roberts' analysis that a facial or as-applied challenge under Bruen fails based on United States v. Jackson, 69 F.4th 495 (8th Cir. 2023). Based on my review of the record, I find no error - clear or otherwise - in Judge Roberts' recommendation. As such, I adopt the R&R in its entirety.
IV. CONCLUSION
For the reasons set forth herein:
1. I accept the Report and Recommendation (Doc. 33) without modification. See 28 U.S.C. § 636(b)(1).
2. Pursuant to the Report and Recommendation (Doc. 33), Faust's motion (Doc. 21) to dismiss the indictment is denied
IT IS SO ORDERED.