USA v. Kentris

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Criminal Action No. 23-cr-00445-NYW-1
UNITED STATES OF AMERICA,
Plaintiff,
v.
1. 	DEANGELO KENTRIS,
Defendant.
ORDER ON MOTION TO DISMISS
Defendant DeAngelo Kentris (“Defendant” or “Mr. Kentris”) was charged via
Indictment with one count of possession of a firearm or ammunition by a prohibited person
in violation of 18 U.S.C. § 922(g)(1). 	See [Doc. 1]. 	He now moves to dismiss the
Indictment on the basis that the charging statute violates his Second Amendment rights.
See [Doc. 25 (the “Motion” or “Motion to Dismiss”), filed December 6, 2024]. 	The
Government opposes Defendant’s Motion. See [Doc. 27]. Defendant did not file a reply
brief or seek leave of Court to do so, and neither Party requested a hearing on the Motion
to Dismiss. 	The Court took the Motion under advisement on December 30, 2024. 	See
[Doc. 30]. 	For the reasons set forth in this Order, the Motion to Dismiss is respectfully
DENIED.
ANALYSIS
Under 18 U.S.C. § 922, it is unlawful “for any person . . . who has been convicted
in any court of[] a crime punishable by imprisonment for a term exceeding one year . . .
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[to] possess . . . any firearm or ammunition.” 28 U.S.C. § 922(g)(1). Mr. Kentris argues
that § 922(g)(1) is unconstitutional both facially and as applied to him. 	See [Doc. 25 at
12–14]. 	His argument is based on two recent decisions from the Supreme Court of the
United States: N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), and United
States v. Rahimi, 602 U.S. 680 (2024). [Doc. 25 at 2–7, 10–12]. Mr. Kentris contends
that there is no binding precedent that addresses the constitutionality of § 922(g)(1) within
the context of Bruen and Rahimi. [Id. at 7–10].
This Court and other district courts in this Circuit have concluded that arguments
like Defendant’s are foreclosed by United States v. McCane, 573 F.3d 1037, 1047 (10th
Cir. 2009). 	See, e.g., United States v. Carrero, 635 F. Supp. 3d 1210, 1215 (D. Utah
2022); 	United States v. Mann, No. 22-cr-01322-JCH, 2023 WL 6930435, at *1 (D.N.M.
Oct. 19, 2023); United States v. Wallace, No. 4:24-cr-00121-SEH, 2024 WL 4256707, at
*2 (N.D. Okla. Sept. 20, 2024); United States v. Watkins, No. 24-cr-00058-SKC, 2024 WL
4381340, at *1 (D. Colo. Oct. 3, 2024); United States v. Hawkins, No. 6:23-cr-10041-EFM,
2024 WL 4751401, at *4 (D. Kan. Nov. 12, 2024); United States v. Rodish, No. 24-cr-
00172-NYW, 2024 WL 4905716, at *1 (D. Colo. Nov. 27, 2024). In McCane, the United
States Court of Appeals for the Tenth Circuit (the “Tenth Circuit”) rejected the argument
that § 922(g) violates the Second Amendment. See 573 F.3d at 1047. Specifically, the
defendant in McCane argued that § 922(g)(1) was unconstitutional under the Supreme
Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008). See McCane, 573
F.3d at 1047. The Tenth Circuit disagreed, noting that the Supreme Court had “explicitly
stated in Heller that ‘nothing in [Heller] should be taken to cast doubt on longstanding
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prohibitions on the possession of firearms by felons.’” 	Id. (quoting Heller, 554 U.S. at
626).
Several years after Heller, in 2022, the Supreme Court decided Bruen and, in the
process, created a two-part test for assessing the scope of the Second Amendment and
the constitutionality of gun regulations. 	See 597 U.S. at 17. 	The Tenth Circuit again
considered the constitutionality of § 922(g)(1) in a post-Bruen challenge brought in
Vincent v. Garland, 80 F.4th 1197 (10th Cir. 2023), cert. granted, judgment vacated, 144
S. Ct. 2708 (2024). In Vincent, the Tenth Circuit noted that
the [Supreme] Court didn’t appear to question the constitutionality of
longstanding prohibitions on possession of firearms by convicted felons. If
anything, 	Bruen 	contains 	two 	potential 	signs 	of 	support 	for 	these
prohibitions.
First, six of the nine Justices pointed out that Bruen was not casting any
doubt on this language in Heller.
Second, Bruen apparently approved the constitutionality of regulations
requiring criminal background checks before applicants could get gun
permits. In Bruen, the Court struck down state regulations that had required
the showing of a special need before someone could get a license to carry
a gun. 	But the Court added that it wasn’t questioning the constitutionality
of “shall-issue” licensing regimes. 	These regimes don’t require a showing
of special need, but they do “often require applicants to undergo a
background 	check” 	to 	ensure 	that 	the 	applicant 	is 	a 	“law-abiding,
responsible citizen[].”
. . .
Given the six Justices’ reaffirmation of the Heller language and the Court’s
apparent approval of “shall-issue” regimes and related background checks,
we conclude that Bruen did not indisputably and pellucidly abrogate our
precedential opinion in McCane.
80 F.4th at 1201–02 (footnote and citations omitted). In other words, in Vincent, the Tenth
Circuit again upheld the constitutionality of § 922(g)(1) pursuant to McCane. Id. at 1202.
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In 2024, after Vincent was decided, the Supreme Court decided Rahimi, which
involved a constitutional challenge to § 922(g)(8)’s prohibition on possession of a firearm
by a person subject to a domestic violence restraining order. 	See Rahimi, 602 U.S. at
684; see also 18 U.S.C. § 922(g)(8). 	In Rahimi, the Court applied the two-part test
articulated in Bruen to determine § 922(g)(8)’s constitutionality. 	602 U.S. at 692–700.
The Supreme Court concluded “only this: An individual found by a court to pose a credible
threat to the physical safety of another may be temporarily disarmed consistent with the
Second Amendment.” Id. at 702 (emphasis added). The Rahimi decision did not address
§ 922(g)(1) at all, except to reiterate that “prohibitions, like those on the possession of
firearms by ‘felons and the mentally ill,’ are ‘presumptively lawful.’” 	Id. at 699 (quoting
Heller, 554 U.S. at 626, 627 n.26).
After Rahimi, the Supreme Court vacated the judgment in Vincent and remanded
the case “for further consideration” in light of Rahimi. See Vincent v. Garland, 144 S. Ct.
2708–09 (2024).1 Vincent is still pending before the Tenth Circuit. But a week after the
Supreme Court’s decision in Rahimi, the Tenth Circuit reiterated that Bruen did not
abrogate McCane, see United States v. Curry, No. 23-1047, 2024 WL 3219693, at *4
(10th Cir. June 28, 2024), and in so doing, also stated that Rahimi similarly “does not
‘indisputably and pellucidly abrogate’ Vincent and McCane and thus does not alter” its
1 “This remand, however, is not a final determination on the merits, an outright reversal,
or a thinly veiled direction to this Court to alter its course.” Hawkins, 2024 WL 4751401,
at *3. “Rather, it simply indicates that ‘intervening developments . . . reveal a reasonable
probability that the decision below rests upon a premise that the lower court would reject
if given the opportunity for further consideration, and where it appears that such a
redetermination may determine the ultimate outcome of the matter.’” Id. (quoting Wellons
v. Hall, 558 U.S. 220, 225 (2010) (alteration in original)).
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decision 	that 	McCane 	remains 	good 	law 	and 	“requires 	[courts] 	to 	uphold 	the
constitutionality of § 922(g)(1),” id. at *4 & n.7.
Mr. Kentris nevertheless argues that McCane does not foreclose his Second
Amendment challenges because Bruen and Rahimi established a new test for analyzing
Second Amendment and “this Court is bound to apply it.” [Doc. 25 at 8]. But the Tenth
Circuit has expressly stated that neither Bruen nor Rahimi expressly overruled or
abrogated McCane. 	See Curry, 2024 WL 3219693, at *4 & n.7. 	“Without en banc
consideration or clear Supreme Court directive, . . . McCane control[s].” Id. at *4. In other
words, McCane “remains binding Tenth Circuit precedent, and this Court is obligated to
follow that decision and deny [Defendant’s] motion.” United States v. Nelson, No. 4:24-
cr-00276-SEH, 2024 WL 4635539, at *2 (N.D. Okla. Oct. 30, 2024); see also Hawkins,
2024 WL 4751401, at *4 (relying on the Tenth Circuit’s decision in Curry and concluding
that “Rahimi did not unequivocally overrule McCane, so McCane remains binding
authority upon this Court”).2
In sum, the Court is bound to follow Tenth Circuit precedent, including McCane.
Defendant’s Motion to Dismiss on Second Amendment grounds is respectfully DENIED.
2 	A 	number 	of 	Courts, 	even 	applying 	the 	Bruen 	framework, 	have 	upheld 	the
constitutionality of § 922(g)(1). 	See, e.g., United States v. Sutton, No. 4:24-cr-00168-
SEH, 2024 WL 3932841, at *4–9 (N.D. Okla. Aug. 23, 2024); United States v. Nunamaker,
No. 4:24-cr-00278-GKF, 2024 WL 4436333, at *4–8 (N.D. Okla. Oct. 7, 2024).
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CONCLUSION
For the foregoing reasons, it is ORDERED that:
(1) 	The Motion to Dismiss the Indictment Under the Second Amendment
[Doc. 25] is DENIED; and
(2) 	On or before January 17, 2025, the Parties shall meet and confer with
respect to the requirements of the Speedy Trial Act and shall file a joint
status report setting forth their position(s) as to the applicable Speedy Trial
Act date, for purposes of resetting the trial in this matter.
DATED: January 13, 2025 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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