USA v. Smith et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
§
§
§
§
v. § CRIMINAL NUMBER H-24-309-01&02
§
TATIANA S. SMITH and
CARLOS ANTONIO GRACE,
Defendants.
§
§
§
§
MEMORANDUM OPINION AND ORDER
Pending before the court is Carlos Grace's Opposed Motion to
Dismiss Count 5 ("Grace's Motion to Dismiss") (Docket Entry No. 57)
and Tatiana Smith's Motion to Dismiss Counts 3, 5 and 6 ("Smith's
Motion to Dismiss") (Docket Entry No. 58). The Government has
filed the Government's Omnibus Response to Defendants' Motions to
Dismiss ("Government's Response") (Docket Entry No. 67). For the
reasons explained below, Defendants' Motions to Dismiss will be
denied.
I. Background
On June 5, 2024, a grand jury charged Smith with one count of
conspiracy to possess with intent to distribute and distribute
controlled substances, in violation of 21 U.S.C. §§ 84l(a) (1),
(b) (1) (A) (iv), and (b) (1) (C) and§ 846 (Count One); one count of
possession with intent to distribute and distribution of oxycodone,
United States District Court
Southern District of Texas
ENTERED
April 28, 2026
Nathan Ochsner, Clerk
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in violation in 21 U.S.C.§§ 84l(a)(1) and (b)(1)(C) and 18 U.S.C.
§ 2 (Count Two); one count of possession with the intent to
distribute controlled substances, in violation of 21 U.S.C.
§§ 841(a)(1), (b) (1)(A)(vi), (b)(1)(C), and 18 U.S.C. § 2 (Count
Four); two counts of possession of a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C.§§ 924(c)(1)(A)
and 2 (Counts Three and Five); and one count of felon in possession
of a firearm, in violation of 18 U.S.C.§§ 922(g)(1) and 924(a)(8)
(Count Six).1 The grand jury charged Grace with one count of
conspiracy to possess with intent to distribute and distribute
controlled substances, in violation of 21 U.S.C. §§ 84l(a)(1),
(b) (1) (A)(iv), and (b)(1)(C), and§ 846 (Count One); one count of
possession with the intent to distribute controlled substances, in
violation of 21 U.S.C.§§ 84l(a)(1), (b)(1)(A)(vi), and (b)(1)(C),
and 18 U.S.C. § 2 (Count Four); and one count of possession of a
firearm in furtherance of a drug trafficking crime, in violation of
18 U.S.C.§§ 924(c)(1) (A) and 2 (Count Five).2 On June 12, 2024,
and August 26, 2024, Defendants Smith and Grace, respectively, pled
not guilty to the charges in the indictment.3
1 Indictment, Docket Entry No. 13, pp. 1-4. All page numbers
reference the pagination imprinted at the top of the page by the
court's Electronic Case Filing system.
2 Id. at 1, 3.
3 June 12, 2024, Minute Entry (Smith); August 26, 2024, Minute
Entry (Grace).
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On March 2, 2026, Grace filed his Motion to Dismiss and Smith
filed her Motion to Dismiss. 4 Tatiana S. Smith and Carlos Grace
(collectively referred to as "Defendants") argue that the counts
related to firearms violations should be dismissed because the
charged statutes violate the Second Arnendment.5 On April 10, 2026,
the Government filed its Response, arguing that the charged
statutes do not violate the Second Arnendment.6
II. Legal Standard
A. Federal Rule of Criminal Procedure 12(b) (1)
Rule 12(b)(1) allows a defendant to "raise by pretrial motion
any defense, objection, or request that the court can determine
without a trial on the merits." Fed. R. Crim. P. 12(b)(1). A
court may grant a motion to dismiss an indictment if the defect "in
the prosecution is essentially one of law." United States v.
Guthrie, 720 F. App'x 199, 201 (5th Cir. 2018) (per curiam). A
defendant may use a Rule 12(b)(1) motion to challenge the
constitutionality of the charged statutes. United States v.
Valencia, No. 5:17-CR-882-DAE(l)(2), 2018 WL 6182755, at *2 (W.D.
Tex. Nov. 27, 2018).
4Grace's Motion to Dismiss, Docket Entry No. 57; Smith's
Motion to Dismiss, Docket Entry No. 58.
5Grace's Motion to Dismiss, Docket Entry No. 57, p. 1; Smith's
Motion to Dismiss, Docket Entry No. 58, p. 1.
6 Government's Response, Docket Entry No. 67, pp. 2-8.
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B. The Challenged Statutes
Counts Three and Five charge Defendants with violating 18
U.S.C.§ 924(c)(1), which makes it unlawful for any person to use
or possess a firearm during and in relation to any crime of
violence or drug trafficking crime.7
Count Six charges Smith with violating 18 U.S.C.§§ 922(g)(1),
which makes it unlawful for "any person who has been convicted in
any court of, a crime punishable by imprisonment for a term
exceeding one year" to possess a firearm. A person who violates
§ 922(g)(1) is fined and imprisoned under§ 924(a)(8).
C. The Second Amendment and Bruen
The Second Amendment states that "[a] well regulated Militia,
being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed." U.S. Const.
amend. II. In District of Columbia v. Heller, 128 S. Ct. 2783,
2822 {2008), the Court held that the Second Amendment protects the
right to possess a handgun in the home for self-defense. In
McDonald v. City of Chicago, Illinois, 130 S. Ct. 3020, 3024
(2010), the Court held that the Second Amendment applies to the
states through the Fourteenth Amendment. In New York State Rifle &
Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111, 2122 {2022),
the Court held that the Second Amendment also protects possession
of a handgun outside the home for self-defense.
7Indictment, Docket Entry No. 13, pp. 2-3. Count Three
charges Smith alone while Count Five charges both Defendants. Id.
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Bruen also clarified the standard for regulating Second
Amendment conduct. A court starts by asking whether the "Second
Amendment's plain text covers [the] individual's conduct." Id. at
2126. If it does, the conduct is presumptively protected. Id. at
2129-30. To justify a regulation of protected conduct, the
Government must "demonstrat [e] that it is consistent with the
Nation's historical tradition of firearm regulation." Id. at 2130.
III. Analysis
Defendants challenge the constitutionality of 18 U.S.C.
§§ 924(c)(1) (A) and 922(g)(1). 8
A. Counts Three and Five - 18 U.S.C. S 924(c) (1) (A)
Defendants argue that § 924(c)(1)(A) is unconstitutional
because it criminalizes conduct protected by the Second Amendment
- possession of a firearm - and because the Government cannot
justify its regulation by demonstrating that it is consistent with
the Nation's historical tradition of firearm regulation. 9 The
8 Grace only challenges the constitutionality of§ 924(c)(1)(A)
while Smith challenges the constitutionality of both§§ 924(c)(1)(A)
and 922(g)(1). Grace's Motion to Dismiss, Docket Entry No. 57,
p. 1; Smith's Motion to Dismiss, Docket Entry No. 58, p. 1.
9 Grace's Motion to Dismiss, Docket Entry No. 57, p. 4; Smith's
Motion to Dismiss, Docket Entry No. 58, p. 2. Grace also argues
that§ 924(c) is unconstitutional as applied to him because he "is
not a convicted felon and not otherwise prohibited from possessing
a firearm or otherwise determined to be a dangerous person who
should be disarmed." Grace's Motion to Dismiss, Docket Entry
No. 57, p. 6. However, a prior felony conviction is not an element
of a § 924(c) conviction. United States v. Reyes, 677 F.Supp.3d
585, 591 (E.D. Tex. 2023). Because Grace's argument does not
(continued...)
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Government argues that the conduct proscribed by § 924(c) is not
protected by the Second Amendment.10 The Government additionally
argues that even if the conduct proscribed by§ 924(c) is protected
by the Second Amendment, § 924(c)(1) is consistent with the
nation's historical tradition of firearm regulation.11
1. Plain Text Analysis
The plain text of the Second Amendment is "read to cover the
individual right to self-defense." Reyes, 677 F.Supp.3d at 591;
see also Heller, 128 S. Ct. at 2799 (explaining that Americans at
the Founding "understood the right [to bear arms] to enable
individuals to defend themselves"); McDonald, 130 S. Ct. at 3036
(explaining that "[s]elf-defense is a basic right, recognized by
many legal systems from ancient times to the present day, and in
Heller, [the Supreme Court] held that individual self-defense is
'the central component' of the Second Amendment right"). But while
the plain text of the Second Amendment covers the right to use a
firearm in self-defense, it is well established that nthe original
understanding of the Second Amendment 'did not extend to possession
of weapons for unlawful purposes. '" United States v. Burgess,
Nos. 22-1110/22-1112, 2023 WL 179886, at *5 (6th Cir. Jan. 13,
9( ••• continued)
establish that "a reasonable trier of fact could [not] convict
Defendant of violating 18 U.S.C. § 924(c), " the court will deny
Grace's Motion to Dismiss as applied to the challenge to§ 924(c).
Id. at 593.
10Government 1 s Response, Docket Entry No. 67, pp. 2-6.
at 3-6.
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2023) (emphasis added); see also United States v. Cash, No. 22-
2713, 2023 WL 6532644, at *2-*3 (3d Cir. Oct. 6, 2023);
United States v. Underwood, 129 F.4th 912, 929 (6th Cir. 2025).
"[T] he Second Amendment's plain text [therefore] does not cover
the conduct proscribed by 18 U.S.C.§ 924(c)." Reyes, 677 F.Supp.3d
at 592. "[T]o be convicted of violating 18 U.S.C. § 924(c), the
Government must prove beyond a reasonable doubt that: (1) Defendant
committed the predicate drug trafficking offense; and (2) Defendant,
with the requisite mens rea, possessed the firearm 'in furtherance'
of the drug trafficking offense." Id. at 591 (quoting 18 U.S.C. §
924(c)(1)(A)). "The in furtherance language of 18 U.S.C. § 924(c)
makes clear the Government must prove the firearm was possessed in
relation to criminal conduct, not self defense." Id. at 592.
"Heller and Bruen's reading of the Second Amendment's plain text
did not provide a right to go on the offensive." Id.
Accordingly, the court finds the Second Amendment's plain text does
not cover the conduct proscribed by§ 924(c).
2. Historical Analysis
Even if the Second Amendment's plain text did cover the
conduct proscribed by§ 924(c), the regulation is "consistent with
the principles
United States v.
determine whether
that underpin our regulatory
Rahimi, 144
§ 924(c)
S. Ct. 1889, 1898
"comport[s] with the
tradition."
(2024). To
principles
underlying the Second Amendment," the court must "ascertain whether
the new law is 'relevantly similar' to laws that our tradition is
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understood to permit." Id. In assessing similarity the court must
consider "whether modern and historical regulations impose a
comparable burden on the right of armed self-defense and whether
that burden is comparably justified." Bruen, 142 S. Ct. at 2133.
In other words, "[w]hy and how the regulation burdens the right are
central to this inquiry." Rahimi, 144 S. Ct. at 1898.
Section 924(c) imposes an enhanced penalty for using,
carrying, or possessing a firearm during a drug trafficking
offense. United States v. Rodriguez, CASE NO. SA-22-CR-00209-JKP,
2025 WL 2607969, at *6 (W.D. Tex. Sept. 8, 2025). The Supreme
Court has "described the statute's basic purpose broadly, as an
effort to combat the 'dangerous combination' of 'drugs and guns.'"
Muscarello v. United States, 118 s. Ct. 1911, 1916 (1998) (quoting
Smith v. United States, 113 S. Ct. 2050, 2060 (1993)).
The Supreme Court has recognized that "[f]rom the earliest
days of the common law, firearm regulations have included
provisions barring people from misusing weapons to harm or menace
others." Rahimi, 144 S. Ct. at 1899. Moreover, "[t]he government
points to various colonial and founding era statutes that increased
punishment for certain felony offenses when arms or dangerous
weapons were used." 12 Rodriguez, 2025 WL 2607969, at *6.
12Government's Response, Docket Entry No. 67, pp. 4-5 (citing
Rahimi, 144 S. Ct. 1899 and Underwood, 129 F.4th 929-930, which
both explain the history of disarming dangerous people, and also
citing The Conductor Generalis: Or the Office, Duty and Authority
of Justices of the Peace, High-Sheriffs, Under-Sheriffs, Coroners,
Constables, Gaolers, Jury-men, and Overseers of the Poor 10
(continued...)
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The court therefore concludes that § 924(c)(1) is consistent
with the nation's historical tradition of imposing enhanced
penalties for felonies committed while armed.
For the reasons explained above, the court will deny
Defendants' respective Motions to Dismiss Counts Three and Five.13
12 ( ... continued)
(New York, Hugh Gaine 1788); Digest of the Laws of New Jersey,
Containing Also the Constitutions of the United States, and of This
State, and the Rules and Decisions of the Courts 585-86 (1838)
(1799 law); An Act for the Punishment of Burglary and Robbery, 1783
Conn. Laws 633; and various other laws that explain the Nation's
history of increasing punishment for certain felony offenses when
arms or dangerous weapons were used). Grace argues that the
Government does not meet its burden under Bruen because it
"primarily relies upon state laws passed after the Second Amendment
was ratified on December 15, 1791." Grace's Reply, Docket Entry
No. 68, p. 1 (emphasis in original). However, the Supreme Court
has made clear that "the Second Amendment permits more than just
regulations identical to those existing in 1791." Rahimi, 144
S. Ct. at 1891; see also Rodriguez, 2025 WL 2607969, at *6 (finding
that the Government met its burden under Bruen when it cited state
laws passed between 1792 to 1897).
13 Grace relies heavily on United States v. Doucet, No. 24-
30656, 2025 WL 3515404 (5th Cir. Dec. 8, 2025), to argue that drug
related offenses are not a sufficient reason for disarmament.
Grace's Motion to Dismiss, Docket Entry No. 57, pp. 5-6; Grace's
Reply, Docket Entry No. 68, p. 1. However, Grace's reliance on
Doucet is misplaced. In Doucet the Fifth Circuit held that it was
unconstitutional to disarm the defendant for a lifetime for
attempted marijuana cultivation under § 922(g)(1) because "the
Government's two proposed analogues - severe historical punishments
for producers or traffickers of contraband and the disarmament of
those legislatively labeled 'dangerous'" were not sufficient
analogues under Bruen. Id. at *6. The holding in Doucet is not
applicable to this case because § 922(g)(1) and § 924(c)(1)(A)
penalize different conduct. Unlike the defendant in Doucet, who
was charged under§ 922(g)(1) for simply possessing a firearm after
being convicted of attempting to cultivate marijuana, Grace is
charged under§ 924(c)(1)(A) for using a firearm in furtherance of
a drug trafficking crime. As discussed above, the Nation has a
historical tradition for increasing the punishment for certain
felony offenses when arms or dangerous weapons were used.
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B. Count Six - 18 u.s.c. S 922(g) (1)
Smith argues that § 922(g)(1) is unconstitutional as applied
to her because there is no historical analogue for disarming
defendants for simply possessing controlled substances. 14 The
Government argues that § 922(g)(1) is not unconstitutional as
applied to Smith because she was on probation for a felony at the
time she allegedly possessed firearms. 15
" [B] ecause convicted felons are unequivocally among the people
protected by the Second Amendment, [t]he plain text of the Second
Amendment covers the conduct prohibited by § 922(g)(1) .•
United States v. Kimble, 142 F.4th 308, 311 (5th Cir. 2025)
(quoting United States v. Schnur, 132 F.4th 863, 867 (5th Cir.
2025), and United States v. Diaz, 116 F.4th 458, 467 (5th Cir.
2024)) (internal quotation marks omitted). The Government
therefore must show that "the Nation has a longstanding tradition
of disarming someone with a criminal history analogous to" the
14 Smith's Motion to Dismiss, Docket Entry No. 58, pp. 3-4.
15Government's Response, Docket Entry No. 67, pp. 6-8.
Although Smith argues that her only predicate felony is possession
of a controlled substance, in 2023 Smith received a deferred
adjudication for unlawfully carrying a weapon in Harris County,
Texas. Order of Deferred Adjudication, Exhibit D to Government's
Response, Docket Entry No. 67-4, p. 1. Her probation terms
explicitly prohibited her from possessing firearms. Id. at 5 1 12.
Smith was on probation for the 2023 felony when she was charged
with violating§ 922(g) (1). at 4 11.
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predicate convictions of possession of controlled substances and
possession a firearm as a felon.16 Diaz, 116 F.4th at 467.
In United States v. Giglio, 126 F.4th 1039 (5th Cir. 2025),
the court found that there was a "'historical practice of disarming
a convict during his sentence.'11 at 1044 {quoting
United States v. Moore, 111 F.4th 266, 271-72 {3d Cir. 2024)).
Accordingly, the Fifth Circuit held that "the Constitution allows
the government to disarm individuals who are carrying out criminal
sentences." Id. at 1043. "Supervised release, of course,
'constitutes a part of the final sentence for [a] crime.'"
{quoting Moore, 111 F.4th at 271).
Because Smith was on probation for a previous felony when she
was charged with violating § 922(g) (1), § 922(g) (1) is not
unconstitutional as applied to her. Giglio, 126 F.4th at 1043-44
(�The lynchpin of our analysis is that [the defendant], at the time
of his conviction, was serving a sentence for a prior
conviction."); see also United States v. Luna, 765 F.Supp.3d 605,
609 (S.D. Tex. 2025) ("The court noted that its 'holding turn[ed]
on the fact that [the defendant] was still on supervised release at
the time of his arrest,' and therefore the court 'need not look to
any dismissed charges, convictions for crimes not punishable for
16The Fifth Circuit "no longer
challenges to (g)(1) categorically"
applied challenges by defendants
convictions.'" Kimble, 142 F.4th at
at 470 n.4).
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reject[s] Second Amendment
and ''instead permit[s] 'as
with different predicate
311 (quoting Diaz, 116 F.4th
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more than a year, or convictions stemming from the same indictment,
which are the pieces of information proscribed by Diaz." (quoting
Giglio, 126 F.4th at 1046)).
For the reasons explained above, the court will deny Smith's
Motion to Dismiss Count Six.
IV. Conclusion and Order
For the reasons explained above, the court concludes that 18
U.S.C. §§ 924(c)(1)(A) and 922(g) (1) do not violate the Second
Amendment. Carlos Grace' s Opposed Motion to Dismiss Count 5
(Docket Entry No. 57) and Tatiana Smith's Motion to Dismiss Counts
3, 5 and 6 (Docket Entry No. 58) are therefore DENIED.
SIGNED at Houston, Texas, on this 28th day of April, 2026.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
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