United States v. Victor Torres

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 15-10492 Plaintiff-Appellee, D.C. No. v. 5:14-cr-00255-EJD-1 VICTOR MANUEL TORRES, Defendant-Appellant. OPINION Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding Argued and Submitted December 12, 2016 San Francisco, California Filed January 8, 2019 Before: Sidney R. Thomas,* Chief Judge, N. Randy Smith, Circuit Judge, and Sharon L. Gleason,** District Judge. Opinion by Judge N.R. Smith * Following the retirement of Judge Kozinski, Chief Judge Sidney R. Thomas was randomly drawn to replace him. Ninth Cir. Gen. Order 3.2.h. Chief Judge Thomas has read the briefs, reviewed the record, and watched a video recording of oral argument. ** The Honorable Sharon L. Gleason, United States District Judge for the District of Alaska, sitting by designation. 2 UNITED STATES V. TORRES SUMMARY*** Criminal Law The panel affirmed a conviction for possessing a firearm while being an alien unlawfully in the United States in violation of 18 U.S.C. § 922(g)(5)(A). Assuming without deciding that unlawful aliens in this country hold some degree of rights under the Second Amendment, the panel held that § 922(g)(5) is constitutional under intermediate scrutiny. COUNSEL Adam G. Gasner (argued), Law Office of Adam G. Gasner, San Francisco, California, for Defendant-Appellant. William James Gullotta (argued), Special Assistant United States Attorney; Barbara J. Valliere, Chief, Appellate Division; United States Attorney’s Office, Oakland, California; for Plaintiff-Appellee. *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. TORRES 3 OPINION N.R. SMITH, Circuit Judge: Assuming that unlawful aliens in this country hold some degree of rights under the Second Amendment, a statute prohibiting the possession of firearms by an alien unlawfully present in the United States withstands constitutional scrutiny and is a valid exercise of Congress’s authority. I. BACKGROUND Defendant Victor Manuel Torres appeals his conviction for possessing a firearm while “being an alien . . . illegally or unlawfully in the United States,” in violation of 18 U.S.C. § 922(g)(5)(A).1 Torres was born in Mexico in 1985. Approximately four years later, he, his younger sister, and his mother moved to San Jose, California, to join Torres’s father, who had entered the United States a year earlier. Nothing in the record suggests that either of Torres’s parents ever had an immigration status through which Torres could qualify for legal status in the United States. Torres was enrolled in the school system in San Jose from 1991 until he was expelled in 2000. This expulsion resulted from Torres’s affiliation with the Sur Santos Pride gang, which he joined at age fourteen. Because of his gang involvement and attendant trouble at school, Torres’s parents sent him back to live in Mexico in 1 The discourse relevant to our discussion uses a variety of terms, such as “unlawful alien,” “illegal alien,” and “undocumented immigrant” (among several others) to refer to a ...

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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals