Barragan-Gutierrez v. United States of America

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
JORGE ENRIQUE BARRAGAN-
GUTIERREZ,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
Case No. 23-CV-34-NDF
Related No. 14-CR-232-NDF
ORDER DISMISSING MOTION TO VACATE, SET ASIDE,
OR CORRECT SENTENCE
This matter is before the Court on Petitioner Jorge Enrique Barragan-Gutierrez’s
motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence.
Petitioner argues that his conviction under 18 U.S.C. § 924(c) for possession of a
firearm in furtherance of a drug trafficking offense is unconstitutional under N.Y. State
Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022) because it punishes mere public
possession of a firearm coincident with a drug trafficking offense without requiring the
government to show that the firearm was used or brandished, or that the defendant held a
specific intent to use the firearm in relation to the drug trafficking crime. 	Petitioner’s
argument continues that the law is overbroad because it “potentially criminaliz[es] conduct
that is not directly related to drug trafficking” in violation of the Petitioner’s Second
Amendment rights. ECF 1 pp 5-8. Petitioner contends that this motion is timely under 28
2:16 pm, 4/7/23
FILED
Margaret Botkins
Clerk of Court
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U.S.C. § 2255(f)(3) because it was filed within one year of the Supreme Court’s decision
in Bruen. ECF 1, p. 12.
As explained below, the Supreme Court in Bruen did not recognize any right related
to conviction under § 924(c), so Bruen did not start a new one-year limitations period under
28 U.S.C. § 2255(f)(3). As a result, the motion is DISMISSED as time-barred.
I. Background
On February 25, 2015, pursuant to his guilty plea, Mr. Barragan was adjudged guilty
of violating 18 U.S.C.§ 924(c)(1)(A), possession of firearms in furtherance of a drug
trafficking crime. 	For that crime he was sentenced to 5 years of imprisonment to run
consecutively following his terms of imprisonment for two other related offenses.
14-CR-232, ECF 123.
Mr. Barragan filed a notice of appeal on April 28, 2015, but the appeal was
terminated without judicial action. 14-CR-232, ECF 141, 149.
Mr. Barragan filed this § 2255 motion on June 23, 2023. Although the motion refers
to this filing as “a second in time [§ 2255] motion,” Petitioner has not previously filed any
motion under § 2255. ECF 1, p. 12.
II. Legal Standards
28 U.S.C. § 2255 entitles a prisoner to collateral relief “[i]f the Court finds that the
judgment was rendered without jurisdiction, or that the sentence imposed was not
authorized by law or otherwise open to collateral attack, or that there has been such a denial
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or infringement of the constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack.” 	28 U.S.C. § 2255(b).
The standard applied to § 2255 motions is stringent. 	“Only if the violation
constitutes a fundamental defect which inherently results in a complete miscarriage of
justice, or an omission inconsistent with the rudimentary demands of fair procedure can
§ 2255 provide relief.” 	United States v. Gordon, 172 F. 3d 753, 755 (10th Cir. 1999)
(internal 	quotations 	omitted). 	The 	Court 	presumes 	the 	proceedings 	which 	led 	to
defendant’s conviction were correct. 	See Parke v. Raley, 506 U.S. 20, 29-30 (1992); 28
U.S.C. § 2255(a). The burden rests on the movant to allege facts which, if proven, would
entitle him or her to relief. See Hatch v. Oklahoma, 58 F. 3d 1447, 1471 (10th Cir. 1995),
cert. denied, 517 U.S. 1235 (1996).
There is a time limitation on filing § 2255 motions. A one-year period of limitation
runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental
action in violation of the Constitution or laws of the United States is removed, if the movant
was prevented from making a motion by such governmental action;
(3) 	the date on which the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or,
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(4) the date on which the facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f)(1)-(4).
For purposes of § 2255(f)(3), the motion need only invoke the newly recognized
right, regardless of whether or not the facts of record ultimately support the movant's claim.
United States v. Snyder, 871 F. 3d 1122, 1126 (10th Cir. 2017).
Mr. Barragan proceeds without the assistance of a lawyer, and the Court therefore
liberally construes his § 2255 submission. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
III. Analysis
A. Whether the Motion is Time-Barred
The first bridge the Petitioner must cross is the one-year limitation on filing a motion
under 28 U.S.C. § 2255(f). 	Mr. Barragan asserts that his motion is timely under
§ 2255(f)(3) as filed within one year of the date on which the Supreme Court newly
recognized his asserted right in Bruen. ECF 1, p. 14. But, as a matter of law, Bruen did
not establish any rights relevant to criminal conviction under § 924(c). To see why, it is
helpful to discuss what Bruen did and did not do.
The Bruen decision concerned the right of law-abiding citizens seeking New York
permits to “have and carry” concealed firearms outside the home for self-defense.
142 S. Ct. at 2122. 	New York’s permitting law had a “proper cause” requirement for an
applicant to “demonstrate a special need for self-protection distinguishable from that of the
general community.” 	Id. at 2156. 	This requirement, the Supreme Court held, is what
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violated the newly recognized Second and Fourteenth Amendment right of ordinary law-
abiding citizens to carry a handgun outside the home for self-defense. Id. at 2122, 2156.
That is all that Bruen did. Of the six Justices in the Bruen majority, three wrote or
joined concurring opinions that reiterated the limited reach of the holding. See Bruen, 142
S. Ct. at 2157 (Alito, J. concurring) (“today’s decision therefore holds that a State may not
enforce a law, like New York’s Sullivan Law, that effectively prevents its law-abiding
residents from carrying a gun for this purpose. That is all we decide.”); Id. at 2161
(Kavanaugh, J. concurring, Roberts, C.J. joining) (“[t]he Court’s decision addresses only
the unusual discretionary licensing regimes, known as ‘may-issue’ regimes, that are
employed by 6 States including New York”).
There is no indication that the Supreme Court in Bruen recognized any new Second
Amendment right in the context of criminality. Like Heller and McDonald before, that is
something Bruen did not do. See Bruen, 142 S. Ct. at 2122 (“In [Heller], and [McDonald],
we recognized that the Second and Fourteenth Amendments protect the right of an
ordinary, law-abiding citizen to possess a handgun in the home for self-defense. . . . We []
now hold, 	consistent 	with 	Heller 	and 	McDonald, that the Second and Fourteenth
Amendments protect an individual’s right to carry a handgun for self-defense outside the
home.”) (citing District of Columbia v. Heller, 554 U. S. 570 (2008); McDonald v.
Chicago, 561 U. S. 742 (2010)).
In 2011, the 10th Circuit Court of Appeals denied a similar challenge to a
§ 924(c)(A)(1) conviction in light of the Supreme Court’s holding in Heller. United States
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v. Angelos, 417 F. App'x 786, 800-01 (10th Cir. 2011) (unpublished). The 10th Circuit’s
rational remains directly applicable to this case:
The majority in Heller made it clear that "the right secured by the Second
Amendment is not unlimited" and that "nothing in our opinion should be taken to
cast doubt on longstanding prohibitions on the possession of firearms by felons and
the mentally ill, or laws forbidding the carrying of firearms in sensitive places such
as schools and government buildings[.]" Heller, 128 S. Ct. at 2816-17. 	More
importantly, the charges against Angelos were not simple felon-in-possession
claims, but charges of possessing and using firearms to facilitate large-scale drug
trafficking.
Id.
In Bruen “the majority opinion states that its holding was ‘in keeping with Heller,’”
and this Court is unable to discern anything in Bruen that would disturb the 10th Circuit’s
Heller-based analysis in Angelos. See United States v. Butts, 2022 WL 16553037, at *2–4
(D. Mont., 2022) (“Bruen did not disturb what was said in Heller about the restrictions
imposed on possessing firearms”).
Numerous courts have come to the same conclusion about Bruen’s inapplicability
to § 924(c), and this Court has not found any decisions to the contrary. See e.g. In re Terry,
No. 22-13615-C, 2022 U.S. App. LEXIS 31448, at *4-6 (11th Cir. 2022) (“[petitioner] has
not shown that the Supreme Court's holding in Bruen, relating to rights of ‘ordinary, law-
abiding, adult citizens’ to carry handguns publicly for their self-defense, has any bearing
on § 924(c)’s prohibition on gun possession during a drug-trafficking crime”); United
States v. Burgess, 22-1110/22-1112, 2023 WL 179886, at *5 (6th Cir. 2023) (“at [the
defendant's] plea hearing he answered ‘yes’ to the question whether he had possessed
firearms in furtherance of his drug crimes . . . So, having admitted to conduct ‘outside the
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scope of the Second Amendment right as historically understood,’ [the defendant] cannot
seek refuge in Bruen”). 1
The Court is aware of United States v. Rahimi where, relying on Bruen, the 5th
Circuit Court of Appeals overturned a conviction under 8 U.S.C. § 922(g)(8) for possession
of a firearm while under a domestic violence restraining order. No. 21-11001, 2023 U.S.
App. LEXIS 5114, at *6-7 (5th Cir. Mar. 2, 2023) petition for cert. filed, No. 22-915, Mar.
21, 2023. The holding in Rahimi was simply that the proceeding establishing the domestic
violence restraining order was a civil proceeding, as opposed to a criminal proceeding, and
thus insufficient to remove Mr. Rahimi from the category of “law-abiding citizens”
1 See also United States v. Nevens, 2022 WL 17492196, at *2 (C.D. Cal. 2022) (“[d]efendant is
not a law-abiding citizen, and regulations governing non-law abiding citizens’ use of firearms do
not implicate Bruen and Heller”); United States v. Isaac, 2023 WL 1415597, at *5–6 (N.D. Ala.,
2023) (“Bruen in no way casts doubt upon the Congress's ability to criminalize the ‘use’ of a
firearm for an unlawful purpose”); United States v. Snead 2022 WL 16534278, at *5 (W.D. Va.
2022)( “the Second Amendment protects the conduct of law-abiding citizens, and provides no
constitutional sanctuary for those who use firearms to commit crimes . . . Plainly, the illegal context
of Snead's alleged possession takes this case outside of the ambit of Bruen”); Battles v. United
States, No. 4:23-cv-00063-HEA, 2023 U.S. Dist. LEXIS 10063, at *2 (E.D. Mo. 2023) (“Bruen
confines its holding to the context of regulations that ‘burden a law-abiding citizen's right to armed
self-defense.’ Movant is not a law-abiding citizen, and regulations governing non-law-abiding
citizens' use of firearms do not implicate Bruen.") (cleaned up); In re United States Austin Bruce
Jeffreys, No. 3:21-00216, 2022 U.S. Dist. LEXIS 198706, at *3 (S.D. W. Va. 2022) (“this Court
finds nothing in Bruen that suggests Congress cannot act within the confines of the Second
Amendment by . . . prohibit[ing] the use of a firearm during and in relation to a drug trafficking
crime, or conspiracy to do so, as found in 18 U.S.C. § 924(c)(1)(A) and (o)); United States v.
Smith, No. 3:16-cr-86 (D. Alaska 2022); United States v. Serrano, No. 21-CR-1590 JLS, 2023
U.S. Dist. LEXIS 38240, at *33 (S.D. Cal. 2023) (“furthering drug trafficking is neither self-
defense nor lawful. Accordingly, the activity regulated by the prohibitions against . . . possession
of a firearm in furtherance of drug trafficking is categorically unprotected”) (cleaned up); Orrego
Goez v. United States, 2023 WL 2045970, at *4 (S.D. Fla., 2023); Fried v. Garland, 2022 WL
16731233, at *1, *9 (N.D. Fla., 2022); United States v. Butts, 2022 WL 16553037, at *2–4 (D.
Mont., 2022); United States v. Ingram, 2022 WL 3691350 (D. S.C., 2022); United States v.
Garrett, 2023 WL 157961, at *3 (N.D., 2023).
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articulated in Heller and Bruen. 	Id. at n. 7 (“the distinction between a criminal and civil
proceeding 	is 	important 	because 	criminal 	proceedings 	have 	afforded 	the 	accused
substantial protections throughout our Nation's history . . . It is therefore significant that
§ 922(g)(8) works to eliminate the Second Amendment right of individuals subject merely
to civil process”). Rahimi does nothing to show that the Supreme Court established a right
under Bruen to be free from conviction in a criminal proceeding for possession of a firearm
in furtherance of a drug trafficking offense.
This Court concludes as a matter of law that the right which petitioner attempts to
invoke in his § 2255 motion was not recognized by the Supreme Court in Bruen and that,
as a result, Bruen does not trigger a new one-year limitations period under 28 U.S.C.
§2255(f)(3). 	See United States v. Wing, 730 F. App'x 592, 596 (10th Cir. 2018)
(unpublished) (“Johnson did not recognize a new right relative to § 924(c)(3)(B).
Therefore, [Petitioner’s] attempt to rely on § 2255(f)(3) to establish the timeliness of his
habeas motion fails”) (citing Johnson v. United States, 576 U.S. 591 (2015)). Accordingly,
the Court finds that the motion is not timely and is therefore DISMISSED.
B. Whether the Petitioner’s Claim Could Succeed on the Merits.
Even if the Court were to consider the merits of Petitioner’s motion under § 2255,
the Court would come to the same conclusion. 	Mr. Barragan has not provided any facts
regarding his individual case. ECF 1, pp. 6-8. His petition is a purely legal argument about
Bruen. 	Id. Yet for the reasons already discussed, Bruen is simply not applicable to a
conviction under 18 U.S.C. § 924(c).
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Moreover, Petitioner’s argument that § 924(c) “potentially criminaliz[es] conduct
that is not directly related to drug trafficking” is simply an incorrect statement of law. See
U.S. v. Avery, 295 F. 3d 1158, 1174–75 (10th Cir. 2002). 	The 10th Circuit has clearly
articulated that “the ‘in furtherance of’ requirements of § 924(c)(1) . . . mandate[s] that the
government prove more than the mere presence of a gun during a drug trafficking crime.”
Id. “Rather, the government must illustrate through specific facts, which tie the defendant
to the firearm, that the firearm was possessed to advance or promote the criminal activity.”
United States v. Iiland, 254 F. 3d 1264, 1271 (quoting H.R. Rep. No. 105-344, at 9 (1997))
(holding that the "in furtherance of” element is a slightly higher standard that encompasses
the “during and in relation to” standard set out in the “use” and “carry” prongs of §924(c)).
Finally, Petitioner offers no support for his argument that Bruen would now require
a showing of specific intent or proof that Petitioner used or brandished a firearm. ECF 8.
C. Whether the Court Should Issue a Certificate of Appealability.
The denial of a 28 U.S.C. § 2255 motion is not appealable unless a circuit justice or
a circuit or district judge issue a Certificate of Appealability (COA). 	See 28 U.S.C.
§ 2253(c)(1). 	Rule 11 of the Rules Governing § 2255 Proceedings requires the Court to
grant or deny a COA when making a ruling adverse to the petitioner. 	United States v.
Scuderi, No. 12-10059-EFM, 2020 U.S. Dist. LEXIS 220913, at *7 (D. Kan. 2020). 	A
court may only grant a COA “if the applicant has made a substantial showing of the denial
of a constitutional right.” Id.; § 2255(c)(2). A petitioner satisfies this burden if “reasonable
jurists would find the district court's assessment of the constitutional claims debatable or
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wrong.” Saiz v Ortiz, 392 F. 3d 1166, 1171 n.3 (10th Cir. 2004) (quoting Tennard v Dretke,
524 U.S. 274, 282 (2004)).
Mr. Barragan has not made any showing that the existing “possession of firearms in
furtherance of a drug trafficking crime” prong of 18 U.S.C. § 924(c) is constitutionally
infirm after Bruen and that he was denied a constitutional right. Therefore, the Court denies
a COA.
IV. Conclusion
For the reasons stated above, IT IS ORDERED THAT Petitioner’s Motion under
28 U.S.C. § 2255 is DISMISSED as time-barred.
IT IS FURTHER ORDERED that a Certificate of Appealability shall not issue.
The Court’s orders at ECF 2 and ECF 5 are VACATED as moot. The Clerk’s
office shall close this case.
IT IS SO ORDERED this 7th day of April, 2023.
_______________________________________
NANCY D. FREUDENTHAL
UNITED STATES SENIOR DISTRICT JUDGE
___________________________________
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