Opinion
3:23-cr-05062-DGE
05-24-2024
UNITED STATES OF AMERICA, Plaintiff, v. JASON WILLIAM HINDMAN, Defendant.
ORDER DENYING MOTION TO DISMISS INDICTMENT (DKT. NO. 73) AND MOTION TO WITHDRAW PLEA OF GUILTY (DKT. NO. 74)
DAVID G. ESTUDILLO, UNITED STATES DISTRICT JUDGE
Before the Court are Defendant Jason Hindman's Motion to Dismiss the Indictment (Dkt. No. 73) and Motion to Withdraw Plea of Guilty (Dkt. No. 74). After Defendant's guilty plea but before sentencing, the Ninth Circuit issued an opinion in United States v. Duarte, No. 22-50048, 2024 WL 2068016, at *3 (9th Cir. May 9, 2024). The Duarte panel found 18 U.S.C. § 922(g)(1) unconstitutional under the Supreme Court's recent precedent New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), which outlines the current test for determining whether gun regulations violate the Second Amendment.
Before Bruen, in the Ninth Circuit, § 922(g)(1) was considered constitutional as outlined by United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010). Nine months ago, Hindman filed a motion to dismiss his indictment on these grounds-that § 922(g)(1) was unconstitutional under Bruen. (Dkt. No. 33). This Court considered the motion and denied it, joining “at least 20 courts in this circuit in finding Vongxay is not clearly irreconcilable with Bruen and is therefore still binding.” (Dkt. No. 53 at 6.)
The Duarte panel found Vongxay was abrogated by Bruen. Duarte, 2024 WL 2068016 at *2 (“Vongxay is clearly irreconcilable with Bruen and therefore no longer controls because Vongxay held that § 922(g)(1) comported with the Second Amendment without applying the mode of analysis that Bruen later established and now requires courts to perform.”) As this Court's analysis of Hindman's original motion to dismiss was explicitly rejected by the Duarte panel, Hindman requests to withdraw his guilty plea and dismiss the indictment on grounds that § 922(g)(1) is now unconstitutional.
In the Ninth Circuit:
[n]o opinion of this circuit becomes final until the mandate issues, and the opinion issued by the prior majority was only part way through its finalization process. Until the mandate has issued, opinions can be, and regularly are, amended or withdrawn, by the merits panel at the request of the parties pursuant to a petition for panel rehearing, in response to an internal memorandum from another member of the court who believes that some part of the published opinion is in error, or sua sponte by the panel itself.Carver v. Lehman, 558 F.3d 869, 878-879 (9th Cir. 2009). United States v. Ruiz, 935 F.2d 1033 (9th Cir.1991) clarifies that “no expectation of finality can attach during the period in which either party may petition for rehearing.” Id. at 1037 (quoting United States v. Foumai, 910 F.2d 617, 620 (9th Cir.1990)). “Thus, until the mandate issues, an opinion is not fixed as ‘settled Ninth Circuit law,' and reliance on the opinion is a ‘gamble.'” Carver, 558 F.3d at 878 n.16 (quoting Ruiz, 935 F.2d at 1037).
As of the date of this Order, no mandate in Duarte has issued. The United States has filed a petition for rehearing en banc and the panel has instructed Defendant-Appellant Steven Duarte to file a response to that petition by May 30, 2024. United States v. Steven Duarte, No. 22-50048, Dkt. Nos. 72, 73.
Hindman's motions are thus premature and DISMISSED without prejudice. The Court held a status hearing on May 23, 2024 to discuss these issues and this ruling. If or when a mandate issues, Defendant may re-file the motions. If no mandate issues and the matter is scheduled to be heard en banc, the United States indicated it expects to file a motion to schedule this case for sentencing. The Court scheduled another status hearing on August 2, 2024 at 1:30 PM in Courtroom B.
IT IS SO ORDERED.