United States of America v. Daniel Guerrero-Leco

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4920
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DANIEL GUERRERO-LECO,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:08-cr-00118-RJC-1)
Submitted: June 10, 2011 Decided: September 13, 2011
Before SHEDD, DAVIS, and KEENAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion. Judge
Davis wrote a concurring opinion.
Claire J. Rauscher, Ann L. Hester, Ross H. Richardson, Peter
Adolf, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina; Matthew R. Segal, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, Charlotte,
North Carolina; Amy E. Ray, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Daniel Guerrero-Leco, an alien illegally in the United
States, pled guilty to possessing a firearm in violation of 18
U.S.C. § 922(g)(5), and the district court sentenced him to a
24-month term of imprisonment. Before pleading guilty,
Guerrero-Leco unsuccessfully moved to dismiss the indictment,
arguing that § 922(g)(5) violates the Second Amendment. His
guilty plea is conditioned on his right to appeal the denial of
his dismissal motion, and that is the matter now before us.
Guerrero-Leco’s argument is premised on District of
Columbia v. Heller, 554 U.S. 570 (2008), in which the Court held
generally that the Second Amendment confers an individual right
to bear firearms for self-protection. After this appeal was
filed, we held in United States v. Chester, 628 F.3d 673 (4th
Cir. 2010), that a two-prong analysis is appropriate to
determine whether a statute or regulation violates a defendant’s
Second Amendment right to bear firearms. As we explained:
The first question is “whether the challenged law
imposes a burden on conduct falling within the scope
of the Second Amendment’s guarantee.” This historical
inquiry seeks to determine whether the conduct at
issue was understood to be within the scope of the
right at the time of ratification. If it was not,
then the challenged law is valid. If the challenged
regulation burdens conduct that was within the scope
of the Second Amendment as historically understood,
then we move to the second step of applying an
appropriate form of means-end scrutiny.

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Id. at 680 (citations omitted). Because the district court in
Chester had not undertaken that analysis, we vacated the
judgment and remanded for further proceedings. See also United
States v. Pruess, 416 Fed. Appx. 274, 275 (4th Cir. 2011) (“[A]s
we have determined that a district court must conduct an
analysis of a challenged regulation in light of Heller, we
remand to the district court with instructions to make this
determination in accordance with our decision in Chester.”).
At our request, the parties have filed supplemental
briefs addressing Chester. In his brief, Guerrero-Leco argues
that this case is similar to Chester and Pruess, and that we
should vacate the judgment and remand this case to the district
court with instructions to undertake the Chester analysis in the
first instance. We agree.
Accordingly, we vacate the judgment and remand for
further proceedings consistent with this opinion. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED

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DAVIS, Circuit Judge, concurring:
I concur in the panel’s per curiam opinion vacating
the judgment and remanding this case to the district court.
Appellant, an undocumented citizen of Mexico, was
convicted for illegally possessing an UZI pistol. Appellant’s
twenty-four month custodial sentence, for which he received
credit back to the date of the offense, May 3, 2008, plainly
expired well over one year ago. Moreover, a search of the on-
line detainee locator website of Immigration and Customs
Enforcement (ICE), see https://locator.ice.gov/odls/homePage.do,
shows no information for the Appellant, who appears not to be in
ICE custody. Presumably, therefore, the Appellant has been
removed from this country and likely will not be available for
the further proceedings contemplated by our remand of this case.
I confess that I am not certain which would be the
less desirable outcome: (1) that the Government declined to
deport the Appellant (because this appeal was pending) and he is
therefore still in this country, or (2) that the Appellant’s
conviction will be permanently vacated because the Government
has made it impossible for him to be present for further
proceedings by deporting him sometime in the last year to Mexico
upon his release from the Bureau of Prisons. One should not be
surprised if Heller, which was decided about two months after

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Appellant’s arrest in this case, has spawned this kind of
conundrum in many districts.

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