Case: 21-11001 Document: 179-1 Page: 1 Date Filed: 09/12/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 21-11001 September 12, 2024
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Zackey Rahimi,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CR-83-1
______________________________
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before Jones, Ho, and Wilson, Circuit Judges.
Per Curiam:
This case is before us on remand from the Supreme Court. The
district court and a prior panel of this court rejected Zackey Rahimi’s facial
challenge to 18 U.S.C. § 922(g)(8) and upheld his conviction under that
statute. See United States v. Rahimi, No. 21-11001,
2022 WL 2070392 at *1
n.1 (5th Cir. June 8, 2022) (withdrawn July 7, 2022). The prior panel then
withdrew that opinion and requested additional briefing addressing N.Y.
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No. 21-11001
State Rifle & Pistol Association. v. Bruen, 142 S. Ct. 2111 (2022), which the
Supreme Court handed down shortly after our court’s initial affirmance of
Rahimi’s conviction. United States v. Rahimi, No. 21-11001,
2022 WL
2552046, at *1 (5th Cir. Jul. 7, 2022). The case was then assigned to this
panel, which, after the supplemental briefing and oral argument, re-evaluated
this court’s Second Amendment jurisprudence and concluded that under
Bruen, § 922(g)(8) failed to pass constitutional muster. United States v.
Rahimi,
61 F.4th 443, 461 (5th Cir. 2023). We therefore reversed the district
court’s contrary ruling and vacated Rahimi’s conviction.
Id. The Supreme
Court, clarifying its Bruen test, reversed our judgment and held that
§ 922(g)(8) is facially constitutional. United States v. Rahimi, 602 U.S. ----,
144 S. Ct. 1889 (2024). 1
The facts of this case are well-recounted in this court’s prior opinions,
e.g., 61 F.4th at 448–50, so we do not recite them again here. In his appeal,
Rahimi raised only two issues: his facial challenge to § 922(g)(8), and
whether the district court erred in imposing his sentence to run consecutively
with any state sentences imposed. Rahimi did not lodge an as-applied or dueprocess challenge to § 922(g)(8), or otherwise contest his conviction. Based
on the Supreme Court’s ruling rejecting his constitutional claim, we
therefore affirm his conviction.
_____________________
1
We read the Court’s analysis in Rahimi to have modified Bruen in at least one
relevant respect. In Bruen, the Court instructed that surety laws provided no historical
analogue for banning a person from having a gun, because surety laws only required
“certain individuals to post bond before carrying weapons in public.” 597 U.S. at 55.
“These laws were not bans on public carry.” Id.; see also id. at 59 (same). So any “reliance
on [surety laws] [was] misplaced.” Id. at 55. In Rahimi, the Court announced that surety
laws “confirm” that covered individuals “may be disarmed.” 602 U.S. at ----, 144 S. Ct.
at 1901.
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With Rahimi’s constitutional challenge settled, we briefly discuss his
sentencing claim. Weighing the facts underlying Rahimi’s federal and state
offenses against the Guidelines, the district court concluded that the conduct
underlying his state offenses was not “relevant conduct” under U.S.S.G.
§ 1B1.3. Cf. U.S.S.G. § 5G1.3(c) (providing that if “a state term of
imprisonment is anticipated to result from another offense that is relevant
conduct to the instant offense of conviction,” see U.S.S.G. § 1B1.3(a)(1)-(3),
the sentence for the instant federal offense should run concurrently to the
anticipated state sentences). Based on that finding, the court ordered
Rahimi’s 73-month federal sentence to run consecutively to any sentences
stemming from his pending state charges. 2
This court initially addressed—and rejected—Rahimi’s contention
that the district court erred when it ordered his federal sentence to run
consecutively with any sentences imposed as a result of pending state-court
charges. Post-Bruen, we did not address Rahimi’s sentencing issue because
we vacated Rahimi’s conviction. See 61 F.4th at 449 n.4. Given that
Rahimi’s conviction stands, we now also affirm his sentence.
A district court has the discretion to order its sentences of
imprisonment to be served concurrently or consecutively to anticipated state
terms of imprisonment. Setser v. United States, 566 U.S. 231, 236 (2012).
The sentencing court’s determination of what constitutes relevant conduct
is a factual finding that is reviewed for clear error. United States v. Barfield,
941 F.3d 757, 761 (5th Cir. 2019). A determination of relevant conduct is
“not clearly erroneous as long as [it is] ‘plausible in light of the record as a
_____________________
2
At the time Rahimi filed this appeal, he faced four state charges stemming from
his use of a firearm: three related to Rahimi’s physical assault of his girlfriend in December
2019, and one from Rahimi’s aggravated assault of a different woman in November 2020.
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whole.’” United States v. Ortiz, 613 F.3d 550, 557 (5th Cir. 2010) (quoting
United States v. Rhine,
583 F.3d 878, 885 (5th Cir. 2009)).
Rahimi argues that his four state charges “stem[] from conduct
dealing with firearms and domestic violence,” such that “all of them are
relevant conduct” to his federal offense. Thus, he maintains, his federal and
state sentences should run concurrently, rather than consecutively. But the
record as a whole plausibly supports the district court’s finding that Rahimi’s
pending state charges involve alleged conduct not part of the same course of
conduct as Rahimi’s possession of a firearm in violation of a restraining order
(and thus in violation of § 922(g)(8)). Accord Rahimi, 2022 WL 2070392, at
*1–2.
We AFFIRM Rahimi’s conviction and sentence. Appellant shall
have fourteen days after entry of this opinion to file any petition for rehearing.
See Fed. R. App. P. 40(a)(1).
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James C. Ho, Circuit Judge, concurring:
The Supreme Court can adjust or amend its own precedents at its
discretion. Inferior courts have no such luxury. The Supreme Court has
repeatedly instructed us to follow its precedents, whether we agree with them
or not—and whether we expect the Court itself to follow them or not. See,
e.g., Rodriguez de Quijas v. Shearson/Am. Exp., 490 U.S. 477, 484 (1989);
Agostini v. Felton,
521 U.S. 203, 237 (1997); State Oil Co. v. Khan,
522 U.S. 3,
20 (1997); United States v. Hatter,
532 U.S. 557, 567 (2001).
So we’d be defying the Court’s express command if we decided cases
based on anticipated changes to its precedents. It’s up to the Court to modify
or overrule its own precedents, as it alone deems appropriate—and to reverse
us when it does. See, e.g., Jackson Women’s Health Org. v. Dobbs, 597 U.S.
215 (2022), rev’g
945 F.3d 265 (5th Cir. 2019).
That’s exactly what happened here. We faithfully applied the Court’s
decision in N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).
See United States v. Rahimi,
61 F.4th 443 (5th Cir. 2023). No member of our
court disagreed with our interpretation or application of Bruen. As one of our
distinguished colleagues put it, our job is not to relitigate Bruen, but to
“operat[e] in good faith” and “faithfully implement Bruen.” United States
v. Daniels,
77 F.4th 337, 357–58 (5th Cir. 2023) (Higginson, J., concurring).
The Court has now modified Bruen—as our decision today explains.
See United States v. Rahimi, 602 U.S. _ (2024), rev’g
61 F.4th 443; ante, at 2
n.1. I write separately to note a second alteration to Court precedent. In the
past, the Court has held unconstitutional laws that punish people who don’t
belong in federal prison—even if the defendant himself does. See, e.g., United
States v. Lopez,
514 U.S. 549 (1995); see also United States v. Kersee,
86 F.4th
1095, 1101–02 & n.2 (5th Cir. 2023) (Ho, J., concurring). That principle
readily applies here—victims of domestic violence don’t belong in prison.
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…
Violent criminals should be disarmed, detained, prosecuted,
convicted, and incarcerated. See Rahimi, 61 F.4th at 463 (Ho, J., concurring).
No doubt that’s what Congress had in mind when it enacted
18 U.S.C.
§ 922(g)(8). But § 922(g)(8) also punishes victims of domestic violence. As
a number of amici have explained, § 922(g)(8) punishes victims who don’t
present any danger to anyone, but who are nevertheless subject to a
protective order. It should go without saying that domestic violence victims
shouldn’t be imprisoned for exercising their Second Amendment rights.
The National Association of Criminal Defense Lawyers and the Bronx
Defenders Union, for example, noted that “the Government tries to assure
this Court that states are foolproof in issuing orders of protection,” but that
“[t]his could not be further from the truth.” Brief of The Bronx Defenders
Union and National Association of Criminal Defense Lawyers as Amici
Curiae in Support of Respondent, at 4, United States v. Rahimi, No. 22–915
(2024). “In our experience, the net of orders of protection is so big that it
frequently entangles . . . the actual victims in the relationships.” Id. (emphasis
added). “The Government does not address the reality that states frequently
get it wrong”—namely, by “arresting the wrong partner.” Id. at 4–5.
The California Public Defenders Association and the Alameda
County Public Defenders expressed the same concerns. They observed that
“[t]here is almost no incentive to deny a petitioner a restraining order.”
Brief of Amici Curiae Alameda County Public Defenders and California
Public Defenders Association in Support of Respondent, at 33, United States
v. Rahimi, No. 22–915 (2024). “[T]rial judges are often personally invested
in being overly cautious.” Id. “We have observed firsthand how mutual
restraining orders are prone to manipulation and weaponization of a very
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important process, not to mention disarming the victim of domestic violence.”
Id. at 34 (emphasis added).
Other amici identified similar issues. See, e.g., Brief of Amici Curiae
Phyllis Schlafly Eagles and Eagle Forum Education & Legal Defense Fund in
Support of Respondent, at 3–4, United States v. Rahimi, No. 22–915 (2024)
(“It has long been common knowledge that restraining orders are used by
lawyers for strategic advantage, rather than for genuine safety concerns.”).
…
The message of these amici is simple: § 922(g)(8) punishes victims of
domestic violence. See also Rahimi, 61 F.4th at 465–67 (Ho, J., concurring)
(quoting scholars and judges who have expressed similar concerns).
On the other hand, Zackey Rahimi is by all accounts a dangerous
person who should be in prison. So should we decline to hear his claim, and
wait to address the problems with § 922(g)(8) in some future case?
Well, consider what the Court did in Lopez. Like Rahimi, Lopez is a
dangerous person. Lopez was paid to bring a gun to school “so that he . . .
could deliver it after school to ‘Jason,’ who planned to use it in a ‘gang war.’”
United States v. Lopez, 2 F.3d 1342, 1345 (5th Cir. 1993). But the Court
nevertheless decided Lopez’s Commerce Clause challenge—and held the
Gun-Free School Zones Act unconstitutional—because it sweeps in those
who don’t belong in a federal prison. See
514 U.S. at 562 (Ҥ 922(q) has no
express jurisdictional element which might limit its reach to a discrete set of
firearm possessions that additionally have an explicit connection with or
effect on interstate commerce.”).
The same logic applies here. As counsel for Rahimi explained:
Ours is a facial challenge in the way that Lopez was a facial
challenge, where the facts of Lopez were clearly within
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Congress’s power under the Commerce Clause. This Court
found the facts of that case were Person A was going to pay
Lopez $40 to give that gun to Person C after school.
That’s within the commerce power, but the statute itself was
not within Congress’s power to enact. And so that statute
failed as it then existed, the pre-amendment version of the
Gun-Free School Zones Act, on its face.
Oral Arg. Tr. at 64, United States v. Rahimi, No. 22–915 (2024).
As noted, Lopez involved a claim under the Commerce Clause, not the
Second Amendment. But the Court has repeatedly instructed that “[t]he
constitutional right to bear arms in public for self-defense is not ‘a secondclass right, subject to an entirely different body of rules than the other Bill of
Rights guarantees.’” Bruen, 597 U.S. at 70 (quoting McDonald v. City of
Chicago,
561 U.S. 742, 780 (2010) (plurality opinion)). So our court dutifully
decided Rahimi’s claim.
The Supreme Court has now decided Rahimi. The decision does not
mention Lopez, and it does not allow Rahimi to litigate the sincere concerns
expressed by various amici curiae, judges, scholars, and practitioners. It does
acknowledge the “potential faults” with § 922(g)(8). 602 U.S. at _ n.2. But
it concludes that any defects must be addressed in a future proceeding. 1
I accordingly agree that we should affirm.
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1
In response to Lopez, Congress fixed § 922(q) to ensure that it targets only those
who belong in federal prison. See Omnibus Consolidated Appropriations Act of 1997, Pub.
L. No. 104-208, § 101(f),
110 Stat. 3009, 3009-370 (1996) (codified as amended at
18 U.S.C.
§ 922(q)(2)(A)). Congress could likewise fix § 922(g)(8) to ensure that it targets only
violent criminals, and not victims of domestic violence.
8
