Submitted: November 14, 2016
from United States District Court for the Northern District
of Iowa - Cedar Rapids
MURPHY, BENTON, and SHEPHERD, Circuit Judges.
MURPHY, Circuit Judge.
Joseph Turner pled guilty to one count of possession of a
firearm and ammunition by an unlawful drug user in violation
of 18 U.S.C. §§ 922(g)(3) and 924(a)(2),
conditioned on his right to appeal the denial of his pretrial
motion to dismiss. He argues on appeal that 18 U.S.C. §
922(g)(3) is unconstitutionally vague and that the district
court made various sentencing errors. We remand for further
11, 2015 state corrections officer Steve Warner visited the
home of Kyle Turner who was serving a state probationary
sentence. Turner told officer Warner that he had a shotgun in
his possession. Warner located the shotgun in Turner's
bedroom next to some ammunition. Later that day, Turner
provided a urine sample that tested positive for
methamphetamine. He was thereafter indicted for possession of
a firearm by an unlawful drug user in violation of 18 U.S.C.
§ 922(g)(3), specifically for possessing a firearm while
being an "unlawful user of methamphetamine."
filed a motion to dismiss the indictment. He argued that
§ 922(g)(3) was unconstitutionally vague as applied to
his conduct because his indictment failed to allege that he
"engaged in regular use of methamphetamine." The
government responded that the motion to dismiss was premature
because it turned on evidence that would be presented at
trial. The district court denied the motion, concluding that
the indictment alleged sufficient facts to defeat
Turner's vagueness challenge. Turner subsequently entered
a conditional guilty plea, reserving his right to appeal the
denial of his motion to dismiss. Turner's plea agreement
stated that on June 11, 2015 he "was an unlawful user of
methamphetamine." The agreement further stated that on
June 11, 2015 he had "tested positive for
methamphetamine" and "admitted to using
methamphetamine approximately one week prior."
conditionally pleading guilty, Turner moved for
reconsideration of the motion to dismiss. Turner also
requested an evidentiary hearing to introduce the documentary
"evidence upon which [he] was indicted" and
"upon which the plea was entered." The
government's opposing motion included additional exhibits
that purportedly showed Turner's prior drug use. The
district court once again denied the motion to dismiss, this
time finding that the government's evidence established
that Turner had engaged in "regular drug use" at a
time "overlapping his possession of a firearm."
Turner was subsequently sentenced to 15 months imprisonment,
and appeals, challenging both the denial of his motion to
dismiss and his sentence.
argues that the district erred in denying his motion to
dismiss which raised the affirmative defense that 18 U.S.C.
§ 922(g)(3) was unconstitutionally vague as applied to
the facts of his case. We review the denial of a motion to
dismiss de novo. United States v. Huggans, 650 F.3d
1210, 1217 (8th Cir. 2011). A criminal statute is
unconstitutionally vague in violation of the Fifth Amendment
due process clause if it "fails to give ordinary people
fair notice of the conduct it punishes, or [is] so
standardless that it invites arbitrary enforcement."
Johnson v. United States, 135 S.Ct. 2551, 2556
Rule of Criminal Procedure 12(b)(1) permits parties to
"raise by pretrial motion any defense, objection, or
request that the court can determine without a trial on the
merits." A motion is capable of pretrial determination
"if trial of the facts surrounding the commission of the
alleged offense would be of no assistance in determining the
validity" of the motion. United States v.
Covington, 395 U.S. 57, 60 (1969). The district court
must rule on such a motion before trial unless there is
"good cause to defer a ruling" and deferral will
not "adversely affect a party's right to
appeal." Fed. R. Crim. P. 12(d).
conclude that "a trial on the merits" was needed to
decide Turner's pretrial motion to dismiss. As a
preliminary matter, the parties dispute what evidence the
district court could consider in making its ruling. Courts
may consider evidence beyond the pleadings to make factual
findings in pretrial orders. See United States v.
Bloomfield, 40 F.3d 910, 913-15 (8th Cir. 1994) (en
banc); see also Fed. R. Crim. P. 12(a) (defining
"pleadings"). Indeed, Rule 12 contemplates that
district courts may sometimes make factual findings when
ruling on pretrial motions and requires that the court
"state its essential findings on the record." Fed.
R. Crim. P. 12(d). Courts may not, however, make factual
findings when an issue is "inevitably bound up with
evidence about the alleged offense itself." United
States v. Grimmett, 150 F.3d 958, 962 (8th Cir. 1998)
(quoting United States v. Wilson, 26 F.3d 142, 159
(D.C. Cir. 1994)). The relevant question is thus not what
evidence the court relied upon in its ruling, but rather what
type of factual finding it made.
phrase "unlawful user of . . . any controlled
substance" in 18 U.S.C. § 922(g)(3) is not defined
by statute and "runs the risk of being
unconstitutionally vague without a judicially-created
temporal nexus between the gun possession and regular
drug use." United States v. Turnball, 349
F.3d 558, 561 (8th Cir. 2003) (emphasis added),
vacated, 543 U.S. 1099 (2005), reinstated,
414 F.3d 942 (8th Cir.) (per curiam). In order to rule on
Turner's as applied constitutional challenge, the
district court therefore had to determine whether he had
engaged in "regular drug use" at the time he
possessed the firearm. The "facts surrounding the
commission of the alleged offense" would assist with
that determination, and ...