United States v. Diontai Moore

                                        PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                       No. 23-1843
                       ___________

             UNITED STATES OF AMERICA

                             v.

                    DIONTAI MOORE,
                              Appellant
                      ____________

      On Appeal from the United States District Court
         for the Western District of Pennsylvania
               (D.C. No. 2-21-cr-00121-001)
       District Judge: Honorable Robert J. Colville
                      ____________

                 Argued on April 16, 2024

Before: HARDIMAN, SMITH, and FISHER, Circuit Judges.

                  (Filed: August 2, 2024)

Lisa B. Freeland
Stacie M. Fahsel [Argued]
Renee Pietropaolo
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
       Counsel for Appellant
William Glaser [Argued]
United States Department of Justice
Criminal Division
Room 1264
950 Pennsylvania Avenue NW
Washington, DC 20530

Eric G. Olshan
Adam N. Hallowell
Laura S. Irwin
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
       Counsel for Appellee

                       ____________

                OPINION OF THE COURT
                     ____________


HARDIMAN, Circuit Judge.

      This appeal arises under the Second Amendment to the
United States Constitution and presents a question of first
impression in this Court. Does a convict completing his




                               2
sentence on supervised release have a constitutional right to
possess a firearm? The answer is no.

                               I

                               A

       In 2008, federal agents collaborated with Pennsylvania
State Police to investigate Appellant Diontai Moore for drug
crimes. As part of this investigation, a confidential informant
bought nearly a gram of cocaine from Moore. The police
arrested Moore and searched his home, where they found more
than three grams of cocaine base. Moore was charged with
distribution of less than five grams of cocaine base. See 

(b)(1)(C). He pleaded guilty and was sentenced to
72 months’ imprisonment followed by 3 years’ supervised
release.

       In 2013, while Moore was on supervised release for that
cocaine conviction, Pittsburgh Police noticed an unusual bulge
under Moore’s shirt. After a struggle, the officers arrested
Moore and recovered a handgun from him. Moore was then
charged with possession of a firearm by a felon, in violation of

(g)(1). In 2015, Moore pleaded guilty. He was
sentenced to 60 months’ imprisonment followed by 3 years’
supervised release. As a condition of his supervised release,
Moore was not allowed to “possess a firearm, ammunition,
destructive device, or any other dangerous weapon.” Supp.
App. 3.

                               B

       Moore was released from prison and began his three-
year term of supervised release in July 2019. Less than two




                               3
years later, on a Friday night in March 2021, Moore went out
drinking with friends to celebrate his birthday. Moore returned
that night to the Pittsburgh townhome of his fiancée
Gwendolyn Pullie, where he had been living with Pullie and
her three minor children for about a year.

        Around 4:00 a.m., Moore and Pullie were upstairs
talking about “how [Moore] went to the club,” when they heard
the dog barking downstairs in the kitchen. App. 279. Moore
later described the dog as “going f***ing crazy.” 

 As
surveillance video footage shows, two figures entered the
parking lot behind the townhome and broke into Pullie’s car,
which was parked in a spot next to the townhome’s back door.
Pullie later testified she felt “terrified” that she was “in harm’s
way.” App. 181. She also “felt like someone was at [her] back
door.” App. 184. So she and Moore went downstairs, where
they saw shadowy figures near the back of the house.

       Pullie then went upstairs to grab a handgun that she kept
in a safe under her bed. She woke up her children, returned
downstairs, and handed Moore the loaded weapon. Pullie left
through the front door, taking her children with her. She and
the children headed for the family’s other car, which was
parked on the street in front of the townhome.

       While Pullie left with the children, Moore took the gun
and went out the back door of the townhome to confront the
trespassers. The two intruders, who had broken into Pullie’s
car, ran away at the sight of Moore. While they were fleeing,
Moore fired three shots. Moore hit one of the intruders in the
back of the thigh. Shortly after hearing the gunshots, Pullie




                                4
drove her children to her cousin’s house, where she dropped
them off.

       Later that weekend, Pullie met with a local detective,
turned in her gun, and spoke about the incident. On Monday,
Moore called his federal probation officer. He admitted his
involvement in the shooting and said that “he fired at
individuals he thought were breaking into his residence.” Supp.
App. 7.

                               C

       Within weeks, Moore was charged as a felon in
possession of a firearm in violation of 

(g)(1).
The indictment listed Moore’s previous federal convictions for
distributing cocaine base and being a felon in possession of a
firearm, as well as previous state drug trafficking convictions.

       Moore pleaded guilty to violating § 922(g)(1). In doing
so, he reserved the right to argue on appeal that § 922(g)(1) is
unconstitutional. The District Court entered judgment against
Moore, sentencing him to 84 months’ imprisonment followed
by 3 years’ supervised release. Moore timely appealed the
judgment of conviction.1




1
  The District Court had jurisdiction under 

.
We have jurisdiction under 

. We review the
District Court’s legal conclusions de novo and its factual
findings for clear error. See United States v. Bergrin, 

 (3d Cir. 2011).




                               5
                               II

                               A

       The Second Amendment provides that “the right of the
people to keep and bear Arms, shall not be infringed.” U.S.
Const. amend. II. As an adult citizen, Moore is one of the
“people” whom the Second Amendment presumptively
protects. See Lara v. Comm’r Pa. State Police, 

 (3d Cir. 2024). And the charge at issue punishes Moore for
quintessential Second Amendment conduct: possessing a
handgun. See District of Columbia v. Heller, 

(2008). So the Government bears the burden of justifying its
regulation. See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

 (2022); United States v. Rahimi, 

,
1897 (2024).2

                               B

      The Government can satisfy its burden only “by
demonstrating that [its regulation] is consistent with the
Nation’s historical tradition of firearm regulation.” Bruen, 597

2
  That Moore was on supervised release does not relieve the
Government of its burden to justify its regulation of Moore’s
arms-bearing conduct. To hold otherwise would relegate the
Second Amendment to “a second-class right, subject to an
entirely different body of rules than the other Bill of Rights
guarantees.” Bruen, 

 (cleaned up). The First and
Fourth Amendments apply to convicts on parole, probation,
and supervised release. See Jones v. N.C. Prisoners’ Lab.
Union, Inc., 

 (1977) (First Amendment);
Griffin v. Wisconsin, 

 (1987) (Fourth
Amendment). So too for the Second Amendment.




                               6
U.S. at 24. To do so, it must “identify a well-established and
representative historical analogue,” which need not be “a
historical twin” or a “dead ringer.” Id. at 30 (emphasis
omitted).

        In analyzing the Government’s proposed historical
analogues, we “must ascertain whether the [challenged] law is
‘relevantly similar’ to laws that our tradition is understood to
permit.” Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 

). “Why and how the regulation burdens the right are
central to this inquiry.” 

 (emphasis added). As compared to
its historical analogue, a modern regulation must “impose a
comparable burden on the right of armed self-defense, and . . .
that burden [must be] comparably justified.” Bruen, 

. In other words, a modern firearms regulation passes
constitutional muster only if it is “consistent with the principles
that underpin our regulatory tradition.” Rahimi, 144 S. Ct. at
1898.

         To justify disarming Moore while he was on supervised
release, the Government cites the tradition of forfeiture laws,
which temporarily disarmed convicts while they completed
their sentences. For example, a 1790 Pennsylvania statute
provided that “every person convicted of robbery, burglary,
sodomy or buggery . . . shall forfeit to the commonwealth all
. . . goods and chattels whereof he or she was . . . possessed at
the time the crime was committed . . . and be sentenced to
undergo a servitude of any term . . . not exceeding ten years.”
Act of Apr. 5, 1790, 13 Statutes at Large of Pennsylvania, at
511, 511–12 (James T. Mitchell & Henry Flanders eds., 1896).

       That 1790 Pennsylvania law is analogous to disarming
convicts on supervised release because it burdened arms-
bearing conduct in the same way and for the same purpose. The




                                7
law seized all of the convict’s possessions, including his
weapons, as part of his “servitude” or sentence. Id. So it was
like disarming a convict on supervised release—which is a
“part of the same sentence” as a term of imprisonment. Mont
v. United States, 

 (2019). And the
Pennsylvania law burdened the right to bear arms for the same
reasons that we now burden the rights of convicts on
supervised release: to deter criminal conduct, protect the
public, and facilitate the convict’s rehabilitation. Compare 

(c) (instructing courts to consider these factors
in imposing supervised release), with Act of Apr. 5, 1790, 13
Statutes at Large of Pennsylvania, at 511 (intending “to
reform” and “to deter”).

       To be sure, the 1790 Pennsylvania law is not a dead
ringer for § 922(g)(1). The old law deprived convicts of all
their goods—including their weapons—while § 922(g)(1)
deprives them of firearms and ammunition alone. But the
founding-era law and the modern statute need not be
“identical.” Rahimi, 144 S. Ct. at 1901. The old law took the
convict’s possessions, including his weapons, and then
imprisoned him, preventing reacquisition until the sentence
was complete. Because it disarmed the convict while he served
his criminal sentence, the 1790 Pennsylvania law is sufficiently
analogous to § 922(g)(1) as applied to convicts on supervised
release.

       The relevance of the 1790 law is buttressed by the fact
that the Pennsylvania Constitution included a precursor to the
federal Constitution’s Second Amendment. Cf. Roth v. United
States, 

 (1957) (state analogues to First
Amendment). The Pennsylvania Constitution of 1776
provided: “the people have a right to bear arms for the defence
of themselves and the state.” Pa. Const. of 1776, ch. I, art. XIII.




                                8
And as revised in 1790, it stated: “the right of the citizens to
bear arms, in defence of themselves and the state, shall not be
questioned.” Pa. Const. of 1790, art. IX, § XXI.

       At the same time that it provided these guarantees,
Pennsylvania enacted multiple forfeiture provisions in addition
to the 1790 law. For example, the legislature stipulated that
counterfeiters were subject to imprisonment “and moreover
[were required to] forfeit all [their] . . . goods and chattels.” Act
of Nov. 26, 1779, § 2, 10 Statutes at Large of Pennsylvania, at
12, 15–16 (James T. Mitchell & Henry Flanders eds., 1904).
Likewise, Pennsylvania regulations intended to protect the
Philadelphia market from competition required a repeat
offender to “forfeit all his goods, and [be] imprisoned at the
discretion of the court.” Act of Apr. 5, 1779, 9 Statutes at Large
of Pennsylvania, at 387, 388–89 (James T. Mitchell & Henry
Flanders eds., 1896).

       The Pennsylvania forfeiture laws just mentioned were
not outliers; they were sufficiently well-established and
representative in the late 18th century to serve as historical
analogues. See Bruen, 

. For example,
Massachusetts provided:

       [A]ll persons who, for the space of one hour after
       [an anti-riot] proclamation [is] made . . . shall
       unlawfully,       routously,       riotously       and
       tumultuously continue together, or shall wilfully
       . . . hinder any such officer . . . from making the
       said proclamation, shall forfeit all their . . . goods
       and chattels to this Commonwealth, or such part
       thereof as shall be adjudged by the Justices,
       before whom such offence shall be tried . . . and




                                 9
       suffer imprisonment for a term not exceeding
       twelve months, nor less than six months.

Act of Oct. 28, 1786, 1 Laws of the Commonwealth of
Massachusetts, at 346, 347 (J.T. Buckingham ed., 1807); see
also Mass. Const. of 1780, pt. I, art. XVII (recognizing the
“right to keep and to bear arms”). Virginia had a similar penalty
for counterfeiting:

       [I]f any person within this commonwealth shall
       forge or counterfeit, alter or erase, any certificate
       of money . . . , every person so offending, and
       being lawfully convicted, shall forfeit his whole
       estate, real and personal, . . . and shall be obliged
       to serve on board some armed vessel . . . without
       wages, not exceeding seven years.

Act of May 5, 1777, ch. 5, § 4, 9 Virginia Statutes at Large, at
286, 287 (William Waller Hening ed., 1821). Unlike the outlier
territorial laws that the Supreme Court has rejected, see Bruen,
597 U.S. at 67–68, these forfeiture laws came from populous
States that sent the most representatives to the First Congress,
see U.S. Const. art. I, § 2.

        Disarming convicts as part of their sentences continued
into the 19th century. For example, Kentucky criminalized
“go[ing] with force and arms before courts.” Act of Dec. 19,
1801, § 33, Collection of All the Public and Permanent Acts of
the General Assembly of Kentucky, at 360, 371 (Harry Toulmin
ed., 1802) (capitalization altered). Those who violated that law
were required “to forfeit their arms to the commonwealth,” and
were “fined and imprisoned at the discretion of a jury.” Id. That
disarmament was compelled even though the Kentucky
Constitution stated that “the rights of the citizens to bear arms




                                10
in defence of themselves and the State shall not be questioned.”
Ky. Const. of 1799, art. X, § 23. Unlike more general forfeiture
laws, which required forfeiture of all goods, this law
specifically required forfeiture of arms as part of a criminal
sentence.

        Similarly, a founding-era Massachusetts law
specifically disarmed offenders as part of their rehabilitation
and reintegration into the community. In the wake of Shays’
Rebellion, “the Massachusetts legislature made rebels who had
taken up arms against the state swear allegiance and give up
their arms for three years before they could be pardoned.”
Folajtar v. Att’y Gen., 

 (3d Cir. 2020) (Bibas,
J., dissenting) (cleaned up). To qualify for pardon, the rebels
were required to “deliver up their arms to, and take and
subscribe the oath of allegiance, before some Justice of the
Peace.” Act of Feb. 16, 1787, ch. VI, 

. If
the rebels satisfied certain conditions for three years, those
arms would be “returned to the . . . persons who delivered the
same, at the expiration of the said term of three years.” 

. The temporary disarmament imposed by that law is also
akin to disarmament during a criminal sentence.

        The bottom line is this: during the founding era,
forfeiture laws temporarily disarmed citizens who had
committed a wide range of crimes.3 Convicts could be required

3
  The crimes referenced from the early days of the Republic
differ from Moore’s felon-in-possession crime. But they all
stand for the proposition that convicts could be disarmed while
serving their sentences. So those founding-era laws serve as
relevant analogues to § 922(g)(1), as it applies to convicts on
supervised release. The context is critical because a law which
constitutes an “an appropriate analogue” in one context may




                              11
to forfeit their weapons and were prevented from reacquiring
arms until they had finished serving their sentences. This
historical practice of disarming a convict during his sentence—
or as part of the process of qualifying for pardon—is like
temporarily disarming a convict on supervised release. After
all, “[t]he defendant receives a term of supervised release
thanks to his initial offense, and . . . it constitutes a part of the
final sentence for his crime.” United States v. Haymond, 

 (2019) (plurality opinion); see also United States
v. Island, 

 (3d Cir. 2019) (“The supervised
release term constitutes part of the original sentence.”)
(cleaned up). Consistent with our Nation’s history and tradition
of firearms regulation, we hold that convicts may be disarmed
while serving their sentences on supervised release.

        Moore tries to distinguish supervised release from
founding-era forfeiture laws. He argues that supervised release
differs materially from forfeiture because supervised release
occurs after the term of imprisonment. We disagree primarily
because “analogical reasoning under the Second Amendment
is n[ot] a regulatory straightjacket.” Bruen, 

. In
addition, Moore’s argument misconstrues the historical record.
The forfeiture of property and limitation on rights occurred
while the convict was serving out his sentence, not only while
he was physically in prison. For example, Virginia convicts
served out their sentences by doing forced labor on a ship, not
in prison. See Act of May 5, 1777, 9 Virginia Statutes at Large,
at 287. And convicts sentenced to prison could serve part of
their sentences outside of prison. See Act of Dec. 22, 1787, ch.



“not [be] a proper historical analogue” in another. Rahimi, 144
S. Ct. at 1902.




                                 12
11, 1 Public Acts of the General Assembly of North Carolina,
at 434 (James Iredell and Francois-Xavier Martin, eds. 1804).

       Moore also suggests that supervised release cannot be
subject to historical analogues because it “is a modern
innovation . . . created by the federal government in 1984.”
Reply Br. 23 (citing Haymond, 588 U.S. at 651–52). This
argument is a nonstarter because requiring “regulations
identical to ones that could be found in 1791” is just “as
mistaken as applying the protections of the [Second
Amendment] only to muskets and sabers.” Rahimi, 144 S. Ct.
at 1898. Although criminal justice worked differently in the
founding era than it does today, it is also true that a convict
could be temporarily disarmed as part of his sentence. So the
“prohibition on the possession of firearms” by a convict subject
to a criminal sentence “fits neatly within the tradition”
embodied by forfeiture laws. Rahimi, 144 S. Ct. at 1901.

        Our conclusion is bolstered by the Supreme Court’s
recent decision in Rahimi. As the Court explained, early
American surety and affray laws establish the principle that
“[w]hen an individual poses a clear threat of physical violence
to another, the threatening individual may be disarmed.”
Rahimi, 144 S. Ct. at 1901. The Court applied that principle to
uphold the federal law prohibiting an individual subject to a
domestic violence restraining order from possessing firearms.
See id. (citing 

(g)(8)). Taken together, the early
American forfeiture laws—which required forfeiting property
in general and arms in particular—likewise yield the principle
that a convict may be disarmed while he completes his sentence
and reintegrates into society. And this principle justifies
applying § 922(g)(1) to Moore, a convict on supervised
release.




                               13
                               C

       Moore’s other counterarguments are unpersuasive.
First, Moore argues that his status as a supervised releasee
cannot support his felon-in-possession conviction. According
to Moore, we may consider only the facts alleged in the
indictment—such as the predicate offenses that made him a
felon. But Moore cites no authority to support this proposition.
That is unsurprising because an as-applied challenge requires
us to ask whether a statute’s “application to a particular person
under particular circumstances deprived that person of a
constitutional right.” United States v. Mitchell, 

 (3d Cir. 2011) (cleaned up). “In order to mount a
successful as-applied challenge, [Moore] must show that under
these particular circumstances he was deprived of a
constitutional right.” 

 (cleaned up). And “these
particular circumstances” include facts beyond the predicate
offenses alleged in the indictment. So the circumstances of a
criminal offense can justify rejecting an as-applied challenge
to a conviction regardless of whether they were charged. This
is especially so where, as here, no party questions the fact that
we deem constitutionally relevant: Moore was on supervised
release when he possessed the firearm. See Moore Br. 5
(conceding this fact).

       Moore also argues that § 922(g)(1) violates the Second
Amendment as applied to his possession of a firearm for
protection at home. He notes that self-defense is the “central
component” of the right, and “the home” is where the need for
self-defense is “most acute.” Moore Br. 44 (quoting Heller,

). Those truisms about the core of the
Second Amendment do not dictate the outcome here. A
prisoner’s cell is his temporary home—and a prisoner may feel
the need to defend himself against other prisoners—but that




                               14
does not entitle him to keep a firearm in prison. “Persons
accused of crime, upon their arrest, have constantly been
divested of their arms, without the legality of the act having
ever been questioned.” State v. Buzzard, 

 (Ark.
1842) (opinion of Ringo, C.J.). A prisoner on house arrest does
not necessarily have a right to keep a weapon at home for self-
defense, even though typical citizens do. The same is true for
a prisoner on supervised release.4

      Because history and tradition support disarming
convicts who are completing their sentences, we reject
Moore’s as-applied challenge to his conviction for violating
§ 922(g)(1).5

                         *      *      *

      A convict completing his sentence on supervised release
does not have a Second Amendment right to possess a firearm.
So 

(g)(1) is constitutional as applied to Moore,
and we will affirm his judgment of conviction.




4
 Of course, the doctrine of necessity or justification “is a valid
defense to a felon-in-possession charge.” United States v.
Alston, 

 (3d Cir. 2008). But Moore failed to
preserve the argument that this defense applies.
5
 Since we reject Moore’s as-applied challenge to § 922(g)(1),
his facial challenge also fails: he cannot “establish that no set
of circumstances exists under which the Act would be valid.”
Rahimi, 144 S. Ct. at 1898 (cleaned up).




                               15